Now thats what I call timing I did it.. just finished at Midnight Easter Sunday.. Nice..

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                                                                                    Appeal No: B5/2010/2396

                                                                                    Claim No: CHY09015

COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT BEFORE HHJ COWELL.

B E T W E E N

(1)  JO GAVIN (now JO FLORES)

(2)  CHANTAL CRACY

Claimants/Appellants

                                                                     -and-

                                                    COMMUNITY HOUSING

    ASSOCIATION LIMITED

(now ONE HOUSING GROUP)

                                                                                                Defendant/Respondent

                                                                                                                                   

Claimants Skeleton Argument for Appeal

                                                                                                                                   

_____________________________________________________________

All page references are to the (replacement) Appeal Bundle

filed on 16 November 2012

Introduction

1. This appeal arises from litigation between landlord and tenant in respect of

 2 leases of two commercial properties situate in adjoining premises in

Cromer Street, London WC1. The Appellants are the tenants (and are referred

to as such in this Statement). The Respondent is the landlord (and is referred

to as such in this Statement).

2. Both leases are of the ground floor and basement areas of multi-storey

buildings. The lease of No.104 was taken in the sole name of Ms Jo Flores

(the first Appellant, formerly known as Ms Jo Gavin) for a term of 6 years

from June 2000 to June 2006.1 When that lease expired, the first Appellant

continued in occupation and held over. The premises were used as an art

gallery (trading name “Scarlet Maguire”).

3. The lease of Nos. 106-108 was taken in the joint names of Ms Flores and Ms

Cracy, the second Appellant, for the term from 17 March 20052 to 7 April

2014. 3 The term has yet to expire. The premises were used as a contemporary

multifunctional space available to hire, for product launches, events, serviced offices etc (trading name “Spaceshift”).

4. Both leases were subject to the provisions of Part II of the Landlord & Tenant

Act 1954.

5. Put very shortly, problems arose with the condition of the two leased

properties in terms of disrepair and flooding, arising from defects in parts of

the building which had not been demised but which remained in the landlord’s

ownership and control.

6. These problems adversely affected the tenants’ businesses and in consequence

their cash flow. Claims made by them on the buildings insurance policies

(held by the landlord but paid for by the tenants pursuant to the terms of the

leases4) did not result in swift or sufficient recompense. The tenants believed

that their inability to trade from the premises (as they had become unfit for

trade) relieved them of liability for some or all of the rent, given the terms of

the leases relating to cesser of rent when the whole or part was rendered unfit.5

7. On 29 October 2008 the landlord purported to forfeit the leases, by re-entry by

their bailiffs, for late payment of rent.6

1 That lease is at p79

2 There had been an earlier lease from 2004-2005.

3 That lease is at p113

4 Clauses 5(3)(a) and 7(2) of the leases

5 Clause 6(3) of the leases

6 The Notices of re-entry are at pp145-146

3

The history of the litigation (in short summary only)

8. On 4 November 2008 the tenants obtained a without-notice injunction7 in the

High Court (Wilkie J) restoring them to occupation.

9. On the return day of the injunction, 14 November 2008, the Judge

(Christopher Clarke J) gave a short judgment, indicating that the points

relating to the provisions of the lease as to cesser of rent were arguable and

that on the balance of convenience the tenants should remain in occupation.8

Cross-undertakings were given which left the tenants in possession pending

the issue and trial of legal proceedings, to be commenced by the tenants.9

10. As required by their undertakings, in December 2008 the tenants began a

claim for damages in the High Court arising out of the condition of the

premises and for the losses they claimed they had suffered.10 They also made a

claim for damages for unlawful eviction in relation to the re-entry.11 The claim

was transferred to the Central London County Court.12

11. By its Defence, the landlord disputed any liability for the adverse conditions in

the premises and claimed that the leases had both been forfeit by re-entry. By

a counterclaim, it sought damages for wrongful occupation since termination

of the leases.13 There was a Reply and Defence to Counterclaim.14

12. The landlord applied to be released from its undertaking to leave the tenants in

occupation of No.104.15 It did so because the lease had expired, it had given

notice pursuant to section 25 of the 1954 Act16 and it contended there had

been no application for a new lease.17 That application was adjourned (with

liberty to restore) and HHJ Cowell fixed a case management conference

(CMC) in the main proceedings.18 The application was restored and heard at

7 See pp147-150

8 The Transcript of Judgment is at pp26-33

9 The Order and Undertakings are at pp151-153 (Terms of Lease; Quiet Enjoyment & Cessor of Rent)

10 Claim Form at p154

11 Particulars of Claim at p156

12 Transfer Order at p170

13 Defence & Counterclaim at pp171-192

14 Reply to Defence and Defence to Counterclaim at pp193-204

15 Application Notice pp205-207

16 Notice at p464

17 The correspondence relating to that issue is (in part) at pp471-476

18 Order at pp208-210

the CMC but did not succeed. The judge gave a short judgment addressing it19

and also gave directions for trial.20 He gave reasons for refusing the landlord’s

application for permission to appeal.21

13. At a pre-trial review in February 2010, the tenants gave notice of their

intention to apply to amend the Particulars of Claim and an application notice

was filed to that effect.22 At a subsequent hearing, the application was only

allowed23 to the extent of permitting three short paragraphs to be added24 but

the Schedules25 which had been annexed to the draft Amended Particulars

were later utilised in the proceedings. A trial was fixed for July 2010 with a

time estimate of 10 days.

14. In June 2010 the landlord issued a claim for possession of No.10426 on the

basis that, even if the lease had not been forfeit, the term had expired without

service of a claim for a new lease.27 The landlord applied for the possession

claim to be considered at the trial of the tenants’ claim.28

15. The claim and counterclaim were tried together over two weeks in July 2010.

Both parties had put in Skeleton Arguments for trial. 29 The tenants were selfrepresenting. The landlord was represented by Leading Counsel. 5 separate

witnesses for the defendant were called and examined by Ms Flores. Leading counsel for the defendant asked Ms Flores to the witness box taking 4 days in total with no re-course to cross examination or access to any documents to clarify exact dates and times etc. Only 3 witnesses were called for the claimants to save time and the documents adduced for trial prepared by the defendant’s counsel extended over 20 volumes of lever arch files. Over the 10 days trial there was only sufficient time for the evidence of the parties to heard, with the unusual exception of Ms Flores presenting the claimant’s case. Ms Flores was asked to send an email within days putting to the Courts the case if any she wished to plead as litigant in person for the Claimant’s.29a Both sides were then ordered to put written closing submissions on liability to the Courts in August (landlord) 30 and September 2010 (tenants) 31 respectively.

16. The judge gave judgment (in a series of separate judgments and rulings) in

September 2010.

17. First, on 9 September 2009 he delivered a judgment on liability, relating to the

19 The Transcript of Judgment is at pp34-38

20 Order at pp216-218

21 Reasons at pp219-220

22 Application Notice at pp223-224

23 Order at pp225-227

24 Reproduced at pp228-229

25 Schedules at pp230-243

26 Claim form for possession at pp246-247

27 Particulars of Claim at pp248-253

28 Application Notice at pp254-256

29 Tenants’ Skeleton Argument at p257, Landlord’s Skeleton Argument at p266

29a Email dated July 2010

30 Defendant’s Submissions at p301

31 Claimants’ Submissions at p348

5

condition of the premises.32 Under that judgment, the tenants had succeeded

on only one small aspect of their claims. They invited the judge to defer

submissions and judgment on quantum, possession and costs (scheduled to be

considered on 20-23 September 2010) until the outcome of an appeal on

liability. Both parties made written submissions33 on that invitation which, in

the event, the judge declined.

18. At the resumed hearing on 20 September 2010 the judge gave a judgment on

quantum on the respective money claims i.e. the tenants’ claim for damages

(£100 awarded) and the landlord’s claim for mesne profits (over £225,000

awarded).34

19. The judge had, after a protracted enquiry from the claimant’s starting as soon as Judgment was given, Ms Flores asking had his honor read the claimant’s 92 pages, 245 paragraphs submission’s on liability as the claimant’s had not orally stated their case at the 10 days trial, however, he realised by 20 September 2010 cost’s hearing that in preparing his judgment on liability he had not read or considered the tenants’ extensive post-trial written submissions.35 He made a statement in open court to that effect on 20 September 2010 and adjourned, after the costs hearing, to read the submissions and prepare a supplementary judgment, to consider, if anything, needed to be changed. That supplementary judgment, now addressing the claimant’s earlier written submissions on liability, was then delivered on 22 September 2010.36

20. Finally, on 22 September 2010 the judge gave a composite judgment as to

forfeiture (which he found established), relief from forfeiture (which he

refused), possession (which he granted), an extension of time to appeal (which

he granted), a stay (which he refused) and costs (which he awarded against the

tenants on an indemnity basis in respect of the whole proceedings).37

21. The judge’s Order, concluding the litigation, reflected the several judgments

given and provided for the tenants to pay substantial interest on the award of

mesne profits and for an interim payment on account of costs in the sum of

£225,000 against a Schedule of Costs of over £330,000.38 The judge refused

permission to appeal.39

22. The outcome was calamitous for the tenants. In the absence of any stay, the

forthwith possession order was executed immediately (at dawn the following

morning) and they were put out of the premises. Their total liability for

32 Transcript of Judgment at pp39-63

33 Landlord’s submissions at p440, Tenant’s Submissions at p441

34 Transcript of that Judgment at pp64-68

34a Claimant’s conteporanious notes on costs hearing

35 His explanation as to how that arose is at pp7-8

36 Transcript of that Judgment at pp70-74

37 Transcript of Judgment at pp75-78

38 Order at pp2-4

39 Reasons at pp5-6

6

damages and costs runs into tens of thousands of pounds, if not hundreds of

thousands of pounds. The tenants have lost their business premises and face

financial ruin.

The Appeal

23. The tenants lodged their Appellant’s Notice on 13 October 2010. 40 They

sought the setting aside of the Judge’s order and a stay of execution.

24. Thereafter the progress of the appeal became bogged-down for more than 24

months. That happened because of communication difficulties between Ms

Flores and the Civil Appeals Office because of problems in securing

transcripts of the judgments and of the trial proceedings in the County Court

(which this Court had ordered early on to be provided at public expense and without which permission to appeal could not commence as ordered by the trial judge).

25. Acting on such material as was only made available by February 2012, which primarily consisted of the landlord’s solicitors notes of the judgment which had already been requested by the claimant’s in Sept 2010 in accordance with the Civil Procedure Rules, Lord Justice Jacob refused permission to appeal on the papers.41

26. The First Appellant exercised her right to renew the permission application

and it came before Lord Justice Ward on 10 May 2012. He was addressed by

Ms Flores. The papers were, by then, were still in a wholly unsatisfactory state.

27. Lord Justice Ward ordered that the hearing of the renewed application for

permission and a stay be adjourned on notice and that the papers be brought

into order. His Order directed the Appellant to the Bar Pro Bono Unit (‘the

Unit’) who might assist.42

28. Correspondence conducted between the Unit’s volunteer adviser Jan Luba QC and the Civil Appeals Office during September 2012 and October 2012 unblocked the logjam of 24 months and produced the transcripts which had been long awaited. The last of them was provided in October 2012.

29. The Unit subsequently authorised its volunteer to assemble a fresh Appeal

Bundle, prepare an Advocate’s Statement42a, and appear for the First Appellant

at the resumed hearing of the renewed application for permission and a stay.

40 N161 at p9

41 Order at p21

42 Order at p22

42a Advocates statement 13^th Dec 2012

7

30. No doubt in the hope that the involvement of the Respondent in the appeal

might trigger the production of manageable documentation and the assistance

of a legal representative, Lord Justice Ward had directed that the resumed

hearing be on notice to the Respondent. However, the Respondent

indicated to this Court that, while intending no disrespect, it does not intend to

be present or represented at the resumed hearing.43 Nevertheless it was

provided with a copy of this Statement, a copy of the proposed Amended

Grounds (see below) and a copy of the index to the new Appeal Bundle.

31. Although the Second Appellant has been content to leave the conduct of the

appeal to the First Appellant, she has also been provided with a copy of this

Statement and a copy of the proposed Amended Grounds (see below).

The Grounds of Appeal

32. There are presently three Grounds of Appeal, settled by the tenants as selfrepresented litigants.44

33. The first is that (in summary) there had been a breach of natural justice and/or

Article 6, in that: the county court had failed to ensure an ‘equality of arms’;

the case management leading to the trial was unfair; and the trial itself was

unfair. Particular emphasis was placed on the judge’s oversight of the tenants’

written submissions (see above at [19]). This ground was addressed in robust

terms by Lord Justice Jacob in paragraph 4 of his Order and is not pursued

further. Although in the light of material made available to Ms Flores on 19^th March 2013 where she has now viewed and has in her possession all the civil appeal courts inter-party correspondence over the past few years permission may be sought to keep these grounds and further advance them if needs be at the next level but that is only if the case is further seen by Ms Flores not to be conducted fairly and her amended grounds for permission to appeal not reasonably advanced and therefore cut out of the appeal. She may only then have with respect and certainly not wanting to cause any further trouble, unheard of publically or as yet put forward in any way, evidence to suggest judicial influence by a public body, leading to a very lengthy and unfair trial.

34. The second ground is directed to the correctness (or otherwise) of the judge’s

approach to the landlord’s legal liability in respect of the damage to the

premises. It is respectfully suggested that permission be given for it to be

recast in the alternative language of Grounds 1 – 3 of the Amended Grounds

of Appeal (see below).

35. The third ground asserts that the judge misrepresented and misunderstood the

events which had taken place since the grant of the injunction (and the

undertakings) restoring the tenants to the premises and thereafter up to the

date of judgment. This ground was addressed by Lord Justice Jacob in

paragraph 5 of his Order and is not pursued further. Again in the light of comments made in para 33 about the inter-party correspondence namely for this ground the solicitors notes leading to Jacob LJ’s decisions, permission may be sought to advance this ground and all of the others, if we are unfairly put to taking the case to any next level (or to a judicial review or to the European Courts and/or to the public domain). With respect to the courts and in the interest of natural justice to the case at hand and its own independent merit solely that we wish to advance and conclude, (so as to get on with the more important work of current national interest the child abuse scandals of the day for which Mary Moss AKA: Ms Flores is in the centre of and is on National news about we have going on see www.legalaidcuts.blogspot.com where we currently have 15,775 followers including much of the mainstream press), the furthering of this ground is not of any interest whatsoever, to do at any time. We just want a fair and fast resolve at the appeal in this strange case that seems to hi-light much of the current landlord and tenants laws of some importance too, that was inadvertent to us as we just suffered the losses, we did not go about trying to add to or make legal landlords and tenants history. Nor with respect, did we set about being the fighters against injustice we are being set up to be, with no choices in those matters but to fight, uncouth as that is for us, for what we once had. We do not wish for any of this, we do not wish to do this sort of old hat 1980’s fighting. But we have no more social standing and are prisoners of poverty and social derision to this case and are being put to fighting like dogs by any means necessary to be listened to. Two girls who owned two posh premises doing privately good social change work in an up to date and very stylish fashion have been brought down, treated like animals and had their whole lives changes irreparably, it is so sad. The fact we are up against another charity of high standing should not justify anyone thinking that they are not wrong.

43 Letter at p23

44 Grounds at pp17-20

8

Application to rely on the Amended Grounds of Appeal

36. The First Appellant (acting for herself and the Second Appellant) sought the

permission of this Court to amend the Grounds of Appeal. She did not make a

formal application but filed an Application Notice and received exemption

from payment of the fee .

37. The application was made very late and represented a very significant re-casting

of the basis and scope of the appeal. Nevertheless, the Court was invited to

allow the amendment because: (1) it enables the Court and the parties to focus

on the real issues in the appeal; (2) the Appellants have only recently been

provided with the transcripts of the judgments which explain the Order under

appeal and enable them to address the judge’s reasoning; and (3) they have

only recently been able to secure some further services of the Unit.

The Amended Grounds of Appeal

38. The Amended Grounds of Appeal 45 are here dealt with briefly, given the

already unusual length of this draft amended skeleton. It was respectfully

suggested that there might be a direction, now the application for permission has been granted, for preparation and service of a full Skeleton Argument by both parties, well ahead of the appeal hearing. The Claimant’s skeleton can only be completed when the Civil Appeal Courts have decided upon whether to allow the amendments which will be served on the 2^nd April on the N244 application notice (the N244 has already been filed on the 21^st March 2013 but the Deputy Master of the Civil Appeals wrote back on the 26^th March 13’ (received on 27^th) and asked that the grounds for any permission to amend be put more formally, with a copy of the grounds of appeal as currently drafted, marked up to show amendments (and with the Easter break and 7 days in which to file it, this will be done by the 2^nd April 2013 for the N244 application to amend). Further it has been suggested by Jan Luba QC in the light of Ward LJ’s order for the Claimants to seek pro-bono advice following the May 10^th 2012 oral hearing where Ms Flores represented herself in person, that if pro-bono cannot assist (although they did in part hence the delay with the skeleton and bundles but now they cannot as of 15^th March 2013 due to needing a senior junior for 21 days to assist Jan Luba QC and they do not have those 21 days to ask of any of their volunteers to prepare bundles and do the skeleton as it is rather a lot of work for a volunteer) that a court Amicus can be provided to Ms Flores as she does know her case having represented it for 4 years but with respect does not know all of the laws. As soon as Ms Flores got the news that a volunteer could not be provided from pro-bono she remembered Jan Luba’s QC’s suggestion and has asked repeatedly by email on the 18^th March, 20^th March and the 26^th March 2013, the Civil Appeals Office about such a provision as an amicus but to date there has been no reply on the matter. Therefore we suggest that when a court amicus is provided that any laws which are not as yet covered in this draft (draft as it will/may be used at the appeal, if there is no provision or no reply regarding a court amicus, a person who knows the laws and can assist the claimant in the court hearing when it comes to advocating the laws) skeleton can be added up to the time of the 1^st May and 2^nd May hearing or sooner as hopefully will be the case. This should not affect the defendant’s skeleton, which has not yet been received (but they were waiting for the pro-bono too) as we will still here lay out the facts we will rely on. However the amendments need to be approved before each party can put forward their skeleton so perhaps the Civil Appeals office can set a new date for those to be filed albeit in the light of the above with or without all of the laws, in the claimant’s case, which we may later rely on. The laws relied on do not have to be in until the 24^th April 2013.

39. The current Amended Grounds are dealt with under the following headings.

Liability

40. The tenants cannot, and do not, seek to go behind the judge’s relevant findings

of fact as to the extent of the damage done to their premises or as to the cause

of that damage (except for the cistern). The judge found that, at a minimum, the tenants “had suffered

from at least four instances of ingress of water, including on two occasions

foul water and sewage, between April 2004 and June 2005”46 and that “I

cannot believe that many basements have quite the degree of damp problems

that this one has”.47

45 Amended Grounds of Appeal at p24

46 Transcript of Judgment p40 para [1]

47 Transcript of Judgment p67 para [8]

9

41. Grounds 1, 2 and 3 address the judge’s self-directions on law in relation to the

liability of the landlord for the damage that was caused to the tenants’

premises.

42. The judge was not helped as to the relevant law by the facts that (1) the

tenants were unrepresented, (1) the Particulars of Claim, albeit settled by

counsel, made it “extraordinarily difficult to ascertain from those particulars

what the causes of action were”48 and the judge was “concerned about the

failure to allocate particular sets of facts to allegations of negligence or other

breaches of duty which has bedevilled this case and made it difficult to try”49

and (3) the judge had himself earlier refused the tenants’ application for

permission to amend the Particulars of Claim to bring them into good order. There were two attempts at this to show good conduct to the courts and towards the defendants, in a demandingly short period of time (a few weeks or they contended the case could be struck out). Firstly by Marc Beaumont whom did not seem to be quite with the case as he had another appearance at the same time to attend to (direct access £10,000 for one weeks work) so the hearing was dismissed with costs and the claimants were given one more chance not to have their case thrown out so next by Vikram Sachdeva (of £12,000 as had to employ solicitors too as no direct access) both at considerable and we contend unnecessary cost to the claimants. The claimants were scared and unknowledgeable at the time as they were acting as litigants in person (to save this type of costs and had thus far asked for the help of a friend barrister in drafting the particulars within the given 3 weeks from the High Courts Order to produce the particulars) and on the advice/order of the judge because of complaints by the defendant that the particulars needed to be amended to be made clearer for the parties, they acted as they believed at the time was necessary. They now see this as utter bullying of them.  Neither exercise came to anything as the judge said he now understood that all the leaks came from outside the demise and that the original particulars could now be used. Although facts were said to not be exactly next to particular allegations, this was semantics as the allegations and breaches of duty are made clear in the original particulars and the witness statement and then further made clear by the claimants in their submissions on liability, legally. The defendant’s cannot reasonably be said to not know the case they had to answer but can be said to have tried to cost the claimants out of court and/or caused delays and/or played a tactical game throughout.

43. Against that background, the judge had to determine and apply the relevant

law for himself. He correctly found that the leases imposed no express

repairing obligations on the landlord in respect of the demised premises but

did require the tenants to keep them clean, in repair and decorated.50

44. But he also found as fact that, in relation to each of the most significant

incidents of damage to the demised premises, the source was a defect in the

parts of the buildings retained in the ownership and control of the landlord (i.e.

the pipes to the toilet which leaked, the soil stack pipes which leaked51 and the pavement lights which leaked52).

Grounds that Succeeded Permission to Appeal are 1-7 & 11-12.

45. Ground 1 of the Amended Grounds of Appeal is that:

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.

46. The judge’s error was to hold that the landlord’s only duty was to repair the

48 Transcript of Judgment p40 para [3]

49 Transcript of Judgment pp47-48 para [18]

50 Lease, clause 5((6) at p93 and p126

51 Transcript of Judgment p43 para [8]

52 Transcript of Judgment pp42-43 para [7] and [8]

10

defect in the retained premises “as soon as reasonably practicable after he

knows it is causing damage to [the demised premises]”.53 With respect that

cannot be the law. If it were, a landlord could let premises encapsulated within

a building, of which he otherwise retained ownership and control, and let

those parts fall to ruin. Even if the defects in the other parts frequently caused

damage to the demised premises, his only duty would be to attend to the

specific item of repair and prevent it causing further damage. If it re-occurred,

or another defect caused damage in the demised premises, the landlord would

again not be liable in damages provided the defect was rectified reasonably

quickly after his having notice of it.

47. It is not impossible to imagine cases (and this case may be a paradigm) in

which a series of defects, each in turn repaired reasonably promptly by the

landlord, successively causes such damage to the demised premises that they

are rendered worthless but in respect of which loss of use or value the landlord

(by prompt after-the-event repairs in each case) escapes liability.

48. The judge ought to have used the ‘duty’ he identified in Duke of Westminster v

Guild [1985] QB 688 as a basis for holding that the liability of such a landlord

arises as soon as the defect in the part retained by him causes damage to the

demised premises.

The Learned Judge placed substantial weight on the case of Duke of Westminster v Guild [1985] Q.B. 688. In that case, at page 701, Slade L.J. said as follows:

“There is a general principle established by such cases as Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472 and Cockburn v. Smith [1924] 2 K.B. 119 which is summarised, in our opinion accurately, in Woodfall, Landlord and Tenant, 28th ed. (1978), vol. 1, para. 1-1469, p. 621:

"Where the lessor retains in his possession and control something ancillary to the premises demised, such as a roof or staircase, the maintenance of which in proper repair is necessary for the protection of the demised premises or the safe enjoyment of them by the tenant, the lessor is under an obligation to take reasonable care that the premises retained in his occupation are not in such a condition as to cause damage to the tenant or to the premises demised."

In Hargroves, Aronson & Co. v. Hartopp [1905] 1 K.B. 472 the plaintiffs were tenants of a floor in a building of which the defendants were the landlords. A rainwater gutter in the roof became stopped up and the defendants failed to clear it out for a few days after receiving notice of the stoppage. They were held to be in breach of a duty of care to the plaintiffs and liable for the damage done. In Cockburn v. Smith [1924] 2 K.B. 119 the facts were similar and the defendant landlords were held liable to the tenant for damage suffered by her as a result of defects in the guttering of the roof of the building of which the landlord retained control. Scrutton L.J. considered, at p. 133, that the landlord's duty was based on "that modified doctrine of Rylands v. Fletcher (1868) L.R. 3 H.L. 330 which is applicable where he retains in his control an artificial construction which becomes a source of danger to his tenant." Bankes and Sargant L.JJ. preferred not to decide whether the relevant duty arose out of a contract between the parties or whether it was an instance of the duty imposed by law upon an occupier of premises to take reasonable care that the condition of his premises does not cause damage: see [1924] 2 K.B. 119 , 130 and 134. But they expressed no doubt that the relevant duty existed.”

49. The judge seems to have imported requirements that, before any liability can

arise, there must be: (1) knowledge or notice of a need for repair on the part

of the landlord; and (2) a reasonable opportunity for repairs to be carried out.

That puts the tenant of ‘enveloped’ premises in a seriously vulnerable

position.

50. The correct approach would be to hold that the landlord is usually absolutely

liable if a defect in the non-demised premises causes damage to the premises

demised. That would put the landlord subject to the Guild duty in no different

position from any other landlord who owes a duty to keep defects in retained

parts from damaging the demise. As Carnwath LJ (as he then was) said in

Earle v Charalambous [2006] EWCA Civ 1090:54

“In applying a standard lessor's repairing covenant, the law draws a

distinction between disrepair in the demised premises themselves, and

disrepair in other parts of the building within the lessor's control. In

53 Transcript of Judgment p47 para [18]

54 At [8]

11

the latter case the "general rule" applies: that is, the covenant requires

the lessor to keep the premises in repair at all times, and he is in

breach immediately a defect occurs (British Telecommunications plc

v Sun Life plc [1996] Ch 69).”

Although it can be said the landlord has no expressed repairing covenant in the leases they do have an expressed covenant in the leases to insure against ‘all risks’ that could cause damage to the demise which can be said is the same thing under different construction. The Earle v Charalambous case is used to outline the accepted ‘general rule’ that requires the ‘lessor to keep in repair at all times’ and it hi-lights what is meant by the definition of ‘at all times’ in terms of construction and meaning of the words, even if it is as with this case, within the insurance policy, which are in this case attached inextricably to the leases and landlords obligations and specifically require the landlord to keep the retained premises in repair ‘at all times’ (including pipes and anything that causes water ingresses). It can be said as an authority that the construction of words in the policy ‘at all times’ to keep (the pipes) in repair is the ‘general rule’ and therefore ‘absolute liability’ is attached to this case upon failure to do so and is in this case the negligence causing nuisance that voided the policy. It is therefore a Ryland v Fletcher case. In all of the disrepair that affected the premises none of the items of disrepair served the claimants premises or was for the use of the premises what so ever. In Ryland v Fletcher, “the person who for his own purpose brings on his lands and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his own peril, and if he does not do so, is prima (fact) facie answerable for all the damage which is the natural consequence of its escape.

Further in both leases the landlord retained rights to enter the demise to repair and

at the permission to amend hearing HHJ Cowell said, “at any rate the issues arising from the law of nuisance are sufficiently pleaded in terms of FACT in the pleadings.”

The first issue raised under the Amended Grounds of Appeal is the question of whether the Learned Judge erred in law in directing that the landlord’s liability for damage arising from defects in another part of the same building as the demised premises, under the ownership and control of the landlord, arose only after notice and a reasonable opportunity to remedy the defect.

The principle that a landlord was only liable for a breach of a repairing covenant when he was given notice of it was established in O'Brien v Robinson [1973] AC 912, [1973] 1 All ER 583, HL. However, this rule is an exception to the general rule and the general rule is that a covenant to keep premises in repair is an obligation to keep in repair at all times, not when notice is given British Telecom plc v Sun Life Assurance Society plc [1995] 2 EGLR 44.

In British Telecom v Sun Life Nourse L.J. reviewed the authorities. He cited with approval Melles & Co v Holme [1918] 2 K.B. 100 as an example if the general rule. In Melles & Co v Holme Salter J said, at p.104:

“It is said that the plaintiffs cannot enforce that covenant because they gave no notice of the breach. In some cases no doubt there must be read into a covenant by a landlord to repair a condition that the tenant must give him notice of the want of repair before he can be entitled to complain of it. The principle of that rule is thus laid down by Bramwell B. in Makin v. Watkinson (1): "When a thing is in the knowledge of the plaintiff, but cannot be in the knowledge of the defendant, but the defendant can only guess or speculate about the matter, then notice is necessary." This was also put very clearly by Collins M.R. in Tredway v. Machin (2): "That rule rests upon the principle that the landlord is not the occupier of the premises, and has no means of knowing what is the condition of the premises unless he is told, because he has no right of access to the demised premises, whereas the occupier has the best means of knowing of any want of repair." To justify the Court in reading into a covenant a condition which is not there, there must be very strong ground for their doing so. Here there are no such grounds. The roof was in the possession and control of the defendants, not of the plaintiffs. Therefore there is no justification for saying that they cannot enforce the covenant in the absence of notice.”

The obligation to carry out repairs pursuant to a repairing covenant is an obligation to carry out those repairs within a reasonable time of notice being given Morris v Liverpool City Council (1987) 20 HLR 498, [1988] 1 EGLR 47, CA and McGreal v Wake (1983) 13 HLR 107, [1984] 1 EGLR 42, CA . In McGreal v Wake Sir John Donaldson noted that the Court considered that it was unfortunate that the House of Lords had felt obliged to conclude that notice was required in O’Brien v Robinson. The principle that repairs are only required within a reasonable period of time of notice being given, can have no application to a case in which there is no obligation to give notice.

Accordingly, the Claimant’s take the view that the Learned Judge did err in law in concluding, at Paragraphs 18 to 21of his Judgment [AB47-49], that liability was dependent upon notice and a reasonable opportunity to repair it; the decision on this point of law was the basis of most of the subsequent findings of the Learned Judge. In reaching that conclusion he cited a paragraph from the highly respected Clerk & Lindsell on Torts, 19th edition, which refers to an obligation arising only on proof of negligence. However, the Learned Judge did not appear to appreciate that that paragraph was not considering contractual obligations, nor was it the chapter on nuisance. In my view, the Learned Judge took that paragraph out of context and clearly did not consider the relevant authorities on point.

The damage arising from leaks from the waste stack pipes which were retained by the Respondent [AB42 at Paragraph 8 Judgment] and those from the electricity room which was not within the demise, Paragraph 54 Judgment [AB61] as well as the flooding of 104 premises para 41 [AB57] should succeed in absolute liability from the moment of damage and further consequential damages para 45 [AB57] to the demised premises.

51. Ground 2 of the Amended Grounds of Appeal is that:

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.

52. The judge was taken to the leading authority on correlative implied

obligations, Barratt v Lounova (1982) Ltd [1990] 1 QB 348, and referred to it

in his judgment.55 The instant case was an a fortiori case for the application of

a correlative and absolute obligation on the landlord to keep in repair the

controlled and retained parts of the building containing the demised premises.

That is because: (1) the retained parts enveloped the demised premises or (in

the case of the pipework) passed through them; and (2) in addition to being

obliged by the leases to repair the demised premises the tenants were required

to meet the cost of insuring the premises against such damage as might arise if

defects in the retained premises caused damage in the demised premises.

53. Although the judge was plainly alerted to these propositions, he failed to apply

them, without any cogent explanation as to why he did not do so.56

He appears to have held that the tenants were in some way put in difficulty by

the principle of caveat lessee (which we have asked permission to appeal in our amended grounds). But that principle could not avail the landlord

when the relevant defect was in the retained, rather than in the demised, parts

of the building.57

The Learned Judge also concluded that the pavement lights with the glass bricks were not demised to the Appellants, and were retained by the Respondent, [AB58 Paragraph 46]. This point was fought by the tenants and succeeded. However, in considering the pavement lights the Learned Judge concluded that the Defendant’s case on caveat lessee was correct [AB59 Paragraph 49] and so that is why we are asking for permission to appeal in the amended grounds against the finding of caveat lessee.

To turn to the question of whether the Learned Judge was wrong in relation to caveat lessee, it is necessary to consider the nature of the principle. In Southwark v Mills, at page 11, Lord Hoffman set out the principle in some detail:

There is however another feature of the covenant which presents the appellants with a much greater difficulty. It is prospective in its nature: see Norton on Deeds , 2nd ed (1928), pp 612-613. It is a covenant that the tenant's lawful possession will not be interfered with by the landlord or anyone claiming under him. The covenant does not apply to things done before the grant of the tenancy, even though they may have continuing consequences for the tenant. Thus in Anderson v Oppenheimer (1880) 5 QBD 602 a pipe in an office building in the City of London burst and water from a cistern installed by the landlord in the roof flooded the premises of the tenant of the ground floor. The Court of Appeal held that although the escape of water was a consequence of the maintenance of the cistern and water supply by the landlord, it was not a breach of the covenant for quiet enjoyment. It did not constitute an act or omission by the landlord or anyone lawfully claiming through him after the lease had been granted. The water system was there when the tenant took his lease and he had to take the building as he found it. Similarly in Spoor v Green (1874) LR 9 Ex 99 the

plaintiff bought land and built houses upon it. The houses were damaged by subsidence caused by underground mining which had taken place before the sale. The Court of Exchequer held that there was no breach of the covenant for quiet enjoyment which had been given by the vendor. Cleasby B said, at p 108:

"it seems to me impossible to say that there is a breach of covenant for quiet enjoyment by reason of the subsidence of the house in consequence of the previous removal of the coal. This subsidence of the house was a necessary consequence of the condition of the property bought by the plaintiff ..."

The tenant takes the property not only in the physical condition in which he finds it but also subject to the uses which the parties must have contemplated would be made of the parts retained by the landlord. Anderson v Oppenheimer 5 QBD 602 , in which it was contemplated that the cistern would be used to contain water, demonstrates this proposition. An even more pertinent case is Lyttelton Times Co Ltd v Warners Ltd [1907] AC 476 . The plaintiffs owned a hotel in Christchurch, New Zealand, next to the premises in which the defendants operated a printing press. They made an agreement under which the defendants would rebuild their premises and grant a lease of the upper floors to the plaintiffs for use as additional hotel *12 bedrooms. Unfortunately the noise and vibrations of the press beneath caused substantial inconvenience to the occupants of the bedrooms. The plaintiffs claimed an injunction to restrain the defendants from working their press. They said that the defendants knew that they intended to use the premises as bedrooms and were under an implied obligation not to interfere with their convenient use. But Lord Loreburn LC, giving the advice of the Privy Council, said that the plaintiffs also knew that the defendants intended to use their premises for printing. He went on, at p 481:

"When it is a question of what shall be implied from the contract, it is proper to ascertain what in fact was the purpose, or what were the purposes, to which both intended the land to be put, and having found that, both should be held to all that was implied in this common intention ... if it be true that neither has done or asks to do anything which was not contemplated by both, neither can have any right against the other."

In the present case in dealing with this issue all the Learned Judge said was that he agreed with the submissions of the Respondent. Those submissions are in the Skeleton Argument [AB266-300] in which the submissions on caveat lessee were set out at [AB279-284 and 289] and Closing Submissions [AB301-331] at [AB310-312 and 325-327]. The argument was that any defect in the pavement lights (or glass bricks) existed prior to the grant of the lease and so “there was no liability in nuisance for any damage caused by water ingress from the pavement lights” [AB325-326].

It is the claimants view that the Learned Judge erred in his conclusions on this issue. It must be noted that the passage cited above from Lord Hoffman’s speech was considering an argument that the covenant of quiet enjoyment gave rise to an obligation to improve premises by installing sound insulation to prevent noise nuisance arising from ordinary use of premises. Lord Hoffman considered the principle in Duke of Westminster v Guild and did not perceive any difficult with it. The proper comparison with the present case would be if the Appellants had contended that the very existence of the pavement lights was wrong, but that was not their case. The Appellants case was that glass bricks had not been sealed properly and was causing leaks.

The Claimants are reinforced in this view by consideration of the authority cited by Lord Hoffman, Anderson v Oppenheimer (1880) 5 Q.B.D. 602 in which the Court of Appeal affirmed the judgment of Field J rejecting the claim on the basis that the covenant of quiet enjoyment was prospective and so could not assist that tenant in respect of a burst water tank provided for the benefit of those in the building. However, it was noted that the jury had found there was no negligence in that case and it appears implicit that a cause of action could have arisen in tort if the tank had been negligently installed or had there been negligence in maintaining it. In the present case the argument was that the failure to seal was negligence in delaying carrying out repairs.

Barrett and Lounova seeks to imply an obligation, that decision has not been followed by the CA in subsequent cases but treated as decided on its own special facts (Adami v Lincoln Grange Management [1998] EGLR 58, Lee v Leeds CC [2002] 1 WLR 1488) and is doubted in Woodfall at para 13.007. Its facts it could be suggested perhaps a good deal stronger than the present. Barratt is not the leading authority on correlative obligations and so for this reason, when the court comes back to the claimants and appoints a court amicus we shall add further argument as to why Barrett and Lounova should apply perhaps too as to the special facts in the circumstances to this case, as we were enveloped as the eminent QC Jan Luba said and further that we did ask for the structure, in the case of ventilation, to be repaired or as in Sir John Vinelott in Adami v Lincoln Grange Management LTD and we offered to pay for it to be repaired. The issue of the ventilation more poignantly hangs on the fact that the lease was unworkable without this repair and that the repair was an insured risk, albeit with an implied obligation. Further HHJ Cowell said that there would be a case of damages if we had asked for the structure to be repaired which we did on several occasions para 223 [AB 430-431-431a-431b-431c-431d-431e-431f-431g-431h-431i-432-433-434-435-436-437-438-439].

Although not appropriate to our case Quick v Taff-Ely Borough Council [1985] has been cited in the cases of ventilation causing condensation etc. We have never pleaded anything other than that we required the structure to be fixed. However it is noted that in this case damages were not sought for the fact that the residential premises were not fit for human habitation and because they did not ask for those damages they did not get them. We ask for the damages to reflect that the lease was unworkable from day 1, as not fit for purpose causing a total constructive loss of all our business venture and causing distress in proving this in a court of law as the landlord put us to doing so. Please note that the landlord had full knowledge of the defect on the onset of the leases and knew the nature of the social good Ms Flores was establishing.

If this part succeeded then the claimants would move for a ‘total constructive loss’ in line with the insurance policy for which the defendants can argue with their insured about. This would be from April 2004 until the lease ends in April 2014, with all other issues subsumed at the 106 premises and that part of the case closed. It is respectfully asked that this be dealt with at the beginning of the May 1^st, 2^nd hearing so as not to waste further courts time and for damages to be assessed in the time left over. It has to be noted that until 19^th March 2013 Ms Flores had not seen the note from the defendants counsel that the Claimants premises have been let on long leases. Therefore the damages should reflect the Claimants being able to set up both premises again in the WC1 area. Please note that a joint forensic accountants report is available to the courts to assess damages and in particular Ms Flores can give evidence as to how Youth Parliament Economy has been adversely affected then as part of the claim.

To turn back to Ground 2 of the Amended Grounds of Appeal, it is said that there was a correlative implied obligation on the landlord to keep in repair those parts of the building which the landlord retained in its ownership and control. That principle is set out in ‘Dilapidations: The Modern Law and Practice’ by Nicholas Dowding Q.C. and others, Sweet & Maxwell 4th edition. As noted in Paragraph 19-16 of ‘Dilapidations’ this obligation should only be implied where performance of the express obligation is impossible without it. In Barrett v Lounova (1982) Ltd [1990] 1 Q.B. 348 the Court of Appeal implied an obligation to repair the exterior in circumstances where the tenant had covenanted to repair the interior.

However, as the authors of ‘Dilapidations’ note it is difficult to see that the covenant to repair the interior could not be performed without the implied obligation and so the tenancy did not appear to be unworkable without the term. Further, those cases where correlative obligations have been implied are cases in which the tenant had agreed to pay for the work as noted by Sir John Vinelott in Adami v Lincoln Grange Management Ltd [1998]1 E.G.L.R. 58 at 60M.

The claimants have to say that, in common with the authors of ‘Dilapidations’ there is some considerable doubt about whether Barrett v Lounova was correctly decided. It is certainly a case which is strongly in favour of the Appellants, but we are concerned that proper scrutiny of this decision in the light of the applicable principles would be such that the Court of Appeal would be anxious to distinguish it. However, it is a ground on which there is existing authority in favour of the Appellants and Ward L.J. has granted permission to proceed with it. We consider the prospects of success to be on balance in favor of the Claimants in light of the existing authorities, but, do sound a note of real of caution about being overly optimistic about this ground. It is for the courts to decide and give good reason why it can or cannot apply in the light that HHJ Cowell stated as fact that it could and LJ Ward has backed this in already giving permission to proceed.

55. Ground 3 of the Amended Grounds of Appeal is that:

55 Transcript of Judgment p45 para [14]

56 Transcript of Judgment pp44-45 para [14]

57 Transcript of Judgment pp58-59 para [48] –[49]

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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.

56. The central thrust of the tenants’ case had been that the recurrence of episodes

of damage to the premises had caused them to become in whole or part unfit

for use (the relevant uses being as galleries and exhibition spaces) and that the

cesser of rent clauses in the leases58 had accordingly been triggered.

57. It will be recalled that Christopher Clarke J had found this point well arguable.

The trial judge himself found that, inter alia, that there had been at least four

leaks into the demised premises in a 14 month period, some of foul water and

sewage. At one point the “smell was really bad in 106-108”59 and the judge

found that the recurrence of repeated ingress of water must have been “quite

enough to daunt the bravest of spirits”.60

58. Yet, on those findings, he held that the cesser of rent provisions were never

triggered. The relevant passage of his judgment does not provide reasons but

appears to proceed on the basis that the provisions only apply when the

premises are “wholly unfit”. That statement is made even though the clauses

refer to “…any part…” of the demised premises.61 On the facts he found, the

judge was therefore wrong to hold that the cesser of rent clauses had never

been triggered.

The third of the Amended Grounds of Appeal concern the Learned Judge’s finding that the conditions in the premises did not give rise to the ‘cesser of rent’ clause, see Paragraph 13 Judgment [AB44]. The clause came into effect if the demised premises was destroyed or damaged “so as to be unfit for use”. In the claimants view, there is a strong case for this Ground of Appeal succeeding on the basis of the findings of fact of the Learned Judge throughout his Judgment.

Quantum

59. Grounds 4 and 5 are concerned with the quantum awarded on the tenants’

claims for damages.

60. Ground 4 of the Amended Grounds of Appeal is that:

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

58 Clause 6(3) at p107 and p139

59 Transcript of Judgment p55 para [34]

60 Transcript of Judgment p40 para [1]

61 Transcript of Judgment p44 para [13]

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their liability to pay rent.

61. The Ground is obviously only in play if the judge did err on liability. But if he

did, quantum must necessarily be significantly affected and would be

significantly higher.

62. Ground 5 of the Amended Grounds of Appeal is that:

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 being used.

63. The assessment of damages at £100 is extraordinary on the judge’s own

findings of fact (not least that at one point the “smell was really bad in 106-

108”62 and the recurrence of repeated ingress of water must have been “quite

enough to daunt the bravest of spirits”63). In his judgment on quantum,64 the

judge approached the assessment at a simple matter of looking at the lost

income for bookings during the exact three week period when he found that

the premises could not be used for display/hire. Such approach takes no

sensible account of the impact on the tenants’ ability to attract customers, to

display their art or hire the exhibition area, of the fact that the premises

recurrently had a foul or damp smell and/or were damp as a result of ingress of

water, foul water or sewage.

64. Further, on the judge’s own findings, the tenants had had to make repeated

claims on the insurance policy.65 In relation to each claim there had been a

£100 excess. That excess was a loss which they suffered by reason of the

landlord’s default and for which they were awarded no damages.

Paragraphs 4 and 5 of the Amended Grounds of Appeal address the question of quantum and the fact that the Learned Judge seriously underestimated quantum. In the claimants view this is plainly correct and stands a very good prospect of success.

However, it is one thing to consider that the £100 award was plainly too low, (even without the further periods of time in respect of which a claim could be made were some of the other grounds to succeed) and quite another to achieve the schedule of loss expectations of the Claimants. Ms Flores accepts that the Schedule of Loss [AB166-169] is unrealistic if it were to be perused at 100%, but let us be clear so as to not cause any further misunderstanding the claimant has indicated this very precisely in the schedule of loss that she would accept 1% (or 2% or higher if the courts see fit) of the claim for loss of opportunity for the Youth Parliament if that part of the claim is not seen as remote given that the defendants knew at all times the special circumstances of the project and further so as not to cause any confusion that any other damages in liability have already been correctly assessed at great cost £8,000 to each party notwithstanding that this was by the order of HHJ Cowell to incur such costs, for the assessment of damages in liability, by the joint forensic accountant in great and full detail as to the realistic potential of the businesses had the issues of disrepair not occurred. The claimants do not intend to have the same job done twice.

The Schedule of loss made hastily within three weeks of the order of LJ Clarke to put together the particulars of claim and a schedule of loss includes, for example, a claim for “£1.5 Billion” in respect of loss of potential membership from Sept 2004-Dec 2008 based on 15 million UK under 18’s at £100 per head

and “£40 Million” from spaceshift from Sept 2007-2008 from a UK Franchise with 10% of £200,000 income per 2000 businesses nationally going to spaceshift to expand with more youth businesses, with a loss £200,000 income for 4000 young entrepreneurs from care who could have profited from the setting up and duplication of the spaceshift business on the Founders 007 course Ms Flores wanted to set up at the premises and had a full business plan to do so, as well as the space to do it, and therefore “£1.9 Billion total potential opportunity” loss. It is often taken out of context and Ms Flores readily admits that when quantifying initially (and as stated in haste) to meet the three weeks deadline, that 1% of potential of membership lost, if Ms Flores did get a total membership for the Youth Parliament Economy for Youth Parliament as a statutory right lobbied and voted for in parliament at a mere £100 per head per annum of 15 million children and young people in the country that she would never claim that in this court case at 100% as that would be seen as too remote of course she knows that. Notwithstanding that with the general state of benefits in the country and the universal benefit of say the winter fuel tax, amounting to a few Billion handed out universally to pensioners whether they be rich or poor, it was not unrealistic to aspire to those figures at £100 per head for the rights of young people not to be abused anymore by the country and this was very much in line with the convention of human rights and the convention of the rights of the chid (which she had previously been involved with in getting ratified in her work with NAYPIC when she was Mary Moss) most especially the clause that young people ‘have freedom of expression’ which cannot with respect be done with grants or funding as that is only ‘empowerment’ it is not a right, like gay rights, women’s rights, civil rights and in the light of the work she was undertaking to advance those benefits for young people in the country plus a very detailed plan on how to achieve that, on her website www.youthparliament.co.uk and with ten staff which was an entirely possible aim, even if the modest potential growth levels had been achieved, then this was important to put into the schedule of loss as loss of opportunity. She at the time of estimating the schedule was just trying to hi-light the importance of her lifetimes work and needed the figures even if some would say optimistic to show that potential. She did not mean to cause alarm merely to show the losses that stopping her did potentially cause. It was simply an indication of her work. If anything it should have been seen as something that should not have been stopped for the potential social good it could have achieved. The abuse of children was a social time bomb ticking and Ms Flores through these businesses wanted to be ready to advocate the solution with sound businesses so the message could be received loud and clear from the survivors of those abuses.

The measure of damages for disrepair by a landlord is that which would have put the lessee in the position he would have been in had there been no breach of the repairing covenant Hill & Redman Law of Landlord & Tenant Chapter 10 Paragraph [3728]. Wallace v Manchester City Council (1998) 30 H.L.R. 1111, albeit the claimants add with some caution a case concerning residential accommodation and so not appropriate for a commercial venture whose losses depend on being able to trade in the accommodation demised and not live in them, but I add it here to hi-light being put back in a position as if the damage had not occurred and also because no doubt the defendant may try to cite it as a relevant authority but it is an authority for the proposition that damages will be assessed by reference to the rent paid and the cessor of rent clause as part of the contract of the leases adequately deals with the loss of rent as a very separate head of claim.

In Woodfall: Landlord & Tenant it is noted:

“11.34 An action for damages for breach of covenant is a contractual claim. The fundamental principle governing the award of damages for breach of contract is that the injured party must be placed, so far as money can do it, in the position in which he would have been if the contract had been performed. However, an award of damages is also governed by the rules relating to remoteness of damage. A contract-breaker is not liable to compensate the injured party for all damage which he suffers as a result of the breach. He is liable to compensate the injured party for (1) such damage as may fairly and reasonably be considered as arising naturally, i.e. according to the usual course of things, from the breach of contract itself and (2) where at the date of the contract both parties know of special circumstances, such additional damage as may naturally flow from a breach of contract under these special circumstances Hadley v Baxendale (1854) 9 Exch.341

In the claimants view, the loss of business has been calculated by a leading expert, who is also the auditors of the defendants solicitors and in terms of legal compliance should not have ever been the independent joint expert as the claimants saw in hindsight as he was very minimal in his approach as can be seen by the report. However that being so, he still assessed the claimants as having at 106 premises lost in the region of £40,000 per annum at 40% trading, £80,000 at 50% trading and £125,000 at 100% trading that is without any assessment for loss of opportunity that is simply on the basis of the tread of booking that were achieved (with insistence from the loss assessors and some considerable discounts to achieve that in the circumstances) in the beleaguered building. For example one month the claimants had a block booking for a training school at £5,000 for the month. Ms Flores has contended throughout that she has had potential bookings of a year or two years at £10,000 per month and can give this evidence over as to losses accumulated since the leases were trespassed. It may seem that that is a large amount of money for what seems to first glance to be a small enterprise but it is fact. The underestimation of what this claim has been about has bedeviled this case except of course to the defendants who know very well how much money the claimants put into these spaces to make them achieve such outstanding incomes. It further adds insult to injury to accept any mediation where the defendant seem to just want to save the measly costs of a few days at court something that they are not even paying for as it is too an insured risk. A message needs to be sent out to the big boys that just because someone is a small business that does not mean they can be costed out of their lives as they know them. Damages should be assessed correctly and not in a patronizing and judgmental fashion using cheap tricks to show some kind of bad conduct to gain mense profit. The claimants as can be seen throughout the case have always attempted to mitigate losses and have with the need to sell one of their houses to pay off the debts been able to albeit not wanting to, initially fund the trial to say in the game. Both litigants are now largely due to the length of the trial of 5 years now living below the breadline, yet continue to conduct themselves well.

Accordingly, we think that it is imperative that the £400,000 cost order which LJ Ward rightly set aside should be dismissed for what it is, a scare tactic and the award of damages should be correctly assessed using at the very least the costly forensic accountants assessment for the commercial premises, as with respect anything else is not law.

Forfeiture & Possession

65. For the tenants, the retention of the leases was a critical issue at trial. They had

paid the rent due throughout the difficulties experienced right up to 2009.

Although significant rent arrears had accrued by the date of trial, it had been

their intention to set-off part of the damages awarded on their claims in

62 Transcript of Judgment p55 para [34]

63 Transcript of Judgment p40 para [1]

64 Transcript of Judgment p65 para [1] – [3]

65 A sample policy is at p442.

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satisfaction of that and any past rent liability.

66. Ground 6 of the Amended Grounds of Appeal is that:

The judge was wrong to hold that the leases had been lawfully forfeit

by re-entry 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.

67. In essence, the tenants’ case was that even if the rent due in October 2008 had

strictly been paid some days late, the level of the rent arrears on the basis of

which the landlord took possession were modest and would have been easily

met by a set-off of the unliquidated damages which had by then accrued in the

tenants’ favour.

68. The judge dealt with the issue of forfeiture very shortly.66 He did not identify

the sum owing at re-entry. He acknowledged that the arrears might have been

extinguished by the set-off of the damages he awarded. However, due to his

own rulings on liability and quantum (addressed in Grounds 1 to 5 above) the

figure available to set-off was wrongly fixed too low.

Equally, in relation to the matters raised under Grounds 6 and 7 the Claimants are of the view that there is a good prospect of the Learned Judge finding that the leases were not lawfully forfeit and that there was no liability to the Respondent for mesne profits. As it seems that these matters obviously arise from my other conclusions there is little purpose in considering this in more detail

69. Ground 7 of the Amended Grounds of Appeal is that:

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.

70. It must follow that, if the damages had been correctly assessed at a sum

greater than the notional arrear of rent, a set-off would have extinguished

those rent arrears. In that eventuality the leases would not have been forfeit

and the re-entry would have been (as the tenants contended it had been) an

unlawful trespass and eviction. That would have had the consequence that (1)

the tenants were entitled to recompense for the fact of their exclusion and the

loss flowing from it and (2) were not liable for mesne profits but only for rent

from the date of reinstatement.

66 Transcript of Judgment p76 para [1]

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Relief from Forfeiture (Grounds not given Permission to Appeal are 8,9 & 10)

71. The judge directed himself that he had no jurisdiction to grant relief from

forfeiture but also that, assuming he had jurisdiction, it would not be right that

it be exercised.67 He was wrong on both accounts.

72. Ground 8 of the Amended Grounds of appeal is that:

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.

73. The question of relief from forfeiture had arisen during the Case Management

Conference in these proceedings in August 2009. In his judgment arising from

that CMC, the judge said that although no formal application had been made

he “ought to treat as pending” an application for relief from forfeiture.68 He

indicated that he would consider at the conclusion of that hearing whether he

needed to give directions about it. In the event, notwithstanding that 25

directions were given in the Order from that hearing, none required a formal

application for relief. It was therefore wrong for the judge to reverse his stance

after the trial and to hold that in the absence of a formal application he had no

jurisdiction.

74. Ground 9 of the Amended Grounds of Appeal is that:

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.

75. The judge plainly had a wide discretion but treated himself as required to

apply an approach that it was for the tenants to show that they could, and

would, immediately pay the rent up-to-date in order to obtain relief.

76. There is no such fetter on the discretion. As was said in Shiloh Spinner v

67 Transcript of Judgment p76 paras [1]-[2]

68 Transcript of Judgment p35 para [3]

16

Harding [1973] AC 691 at 723G -724A

"It remains true today that equity expects men to carry out their bargains and will

not let them buy their way out by uncovenanted payment. But it is consistent with

these principles that we should reaffirm the right of courts of equity in appropriate

and limited cases to relieve against forfeiture for breach of covenant or condition

where the primary object of the bargain is to secure a stated result which can

effectively be attained when the matter comes before the court, and where the

forfeiture provision is added by way of security for the production of that result. The

word "appropriate" involves consideration of the conduct of the applicant for relief,

in particular whether his default was wilful, of the gravity of the breaches, and of the

disparity between the value of the property of which forfeiture is claimed as

compared with the damage caused by the breach."

77. Earl Loreburn in Hyman v Rose [1912] AC 623 had said (page 631):

"I desire in the first instance to point out that the discretion given by the section is

very wide. The court is to consider all the circumstances and the conduct of the

parties. Now it seems to me that when the Act is so express to provide a wide

discretion, meaning, no doubt, to prevent one man from forfeiting what in fair

dealing belongs to someone else, by taking advantage of a breach from which he is

not commensurately and irreparably damaged, it is not advisable to lay down any

rigid rules for guiding that discretion. I do not doubt that the rules enunciated by the

Master of the Rolls in the present case are useful maxims in general, and that in

general they reflect the point of view from which judges would regard an application

for relief. But I think it ought to be distinctly understood that there may be cases in

which any or all of them may be disregarded. If it were otherwise the free discretion

given by the statute would be fettered by limitations which have nowhere been

enacted. It is one thing to decide what is the true meaning of the language contained

in an Act of Parliament. It is quite a different thing to place conditions upon a free

discretion entrusted by statute to the Court where the conditions are not based upon

statutory enactment at all. It is not safe, I think, to say that the Court must and will

always insist upon certain things when the Act does not require them, and the facts of

some unforeseen case may make the Court wish it had kept a free hand."

78. Had he not misdirected himself, that it was an absolute requirement for relief

that the tenants must immediately be able to bring the rent up to date, the

judge would and should have found this a fit case for the exercise of discretion

because:

(1) this was not a wilful default case;

17

(2) despite all the difficulties that the judge found with the

state of the premises, the tenants had paid the rent

throughout the ‘problem periods’ up to 2009;

(3) the October 2008 rent had (on the tenants’ account)

been tendered by cheque before re-entry;

(4) that rent had in any event been paid in full by money

transfer the day after re-entry;

(5) despite the modest award on damages, the tenants had

succeeded on their claims; and

(6) they had an extant application for permission to appeal

in respect of the judge’s judgment.

The Stay

79. Ground 10 of the Amended Grounds of Appeal is that:

“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 effectively financing and

pursuing an appeal (as it did).

80. This Ground speaks for itself. The judge appears to have directed himself that

a stay should only be granted if the tenants could satisfy the terms of the very

order in respect of which they were seeking a stay pending appeal.69 That

approach is entirely circular. The refusal of a stay has, as the tenants suggested

that it would, prevented them from continuing to trade and thus deprived them

of the ability to pay future rent while at the same time disabling them from

having a base from which, or resources with which, to expediently progress

their appeal.

69 Transcript of Judgment p77 para [5]

18

Costs

81. The remaining Amended Grounds of Appeal deal with costs. They are,

unusually, not contingent on success with the other Grounds of Appeal. They

are freestanding.

The usual principle in forfeiture cases is that costs are awarded on an indemnity basis, although the authors of some of the major texts, see Hill & Redman have queried the extent to which that practice is consistent with the modern approach to costs. Obviously, if the appeal succeeds to the extent that the lease was not forfeit then the costs order will fall. If the appeal fails and the argument regarding costs is freestanding then there are prospects of the argument succeeding. This is a very important point of principle which will have a widespread impact on forfeiture cases. The Claimants consider that the prospects of success are on balance in our favor and that it is worth pursuing this Amended Ground of Appeal.

82. Ground 11 of the Amended Grounds of Appeal is that:

Even if the judge did not err in any other aspect of this case, he was

wrong to use the exceptional power to order the tenants to pay the

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.

83. At this stage no great elaboration of this Ground is developed. It is well

recognised that the making of an indemnity costs order is exceptional. The

judge found this an “extraordinarily difficult case”70 because it had not been

well pleaded at a time when the tenants had had professional legal

representation (not their fault) and had thereafter been conducted in a fashion

that is sadly not uncommon when litigants try to handle complex litigation

themselves. The judge might have been on firmer ground in applying an

indemnity basis to the period after various offers had been made by the

landlord. But without giving sufficient reasons for doing so, he applied the

indemnity basis to the entirety of the proceedings.

84. Ground 12 of the Amended Grounds of Appeal is that:

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.

85. It is respectfully suggested that this Ground also speaks for itself. The judge

required the tenants to pay all the reserved costs of all the interlocutory

hearings, even those at which it might be said they had ‘succeeded’, without

70 Transcript of Judgment p76 para [1]

19

giving any explanation for doing so.71

The Stay

86. The Appellant’s Notice seeks a stay of execution of the Order under appeal.

Notwithstanding that more than two years have passed since the making of

that Order, a stay is still pressed as explained in the following paragraphs.

87. The tenants’ primary concern is to be restored to possession of the premises at

the outcome of the Appeal (now permission has been granted for an Appeal).

88. In respect of Nos.106-108, the most recent lease was granted in 2005 for a

term expiring in April 2014. 72 That term has more than a year left to run and

this appeal should have been fallen for determination well before it does.

89. In respect of the lease of No. 104, that lease was granted in 2000 and the term

expired in June 2006.73 Although it does not appear that Ms Flores (the sole

tenant under that lease) gave any notice under Part II of the Landlord &

Tenant Act 1954 seeking a new or extended lease, the judge had previously

held that there was a triable issue as to whether the landlord would be

estopped from taking a point on the failure to give such notice until this

litigation was finally concluded.74 Indeed, the landlord had not been unwilling

to have Ms Flores as tenant and had offered a fresh five year lease, at the same

rent, as one of the terms of a proposed settlement of the litigation.75

90. In those circumstances, the tenants will invite this Court at the conclusion of

the appeal to make an order with the effect that the tenants be restored to

possession. As neither property has been let on a fresh long lease, this is far

from impractical. If permission to appeal be given (now given), the tenants will seek

undertakings from the landlord not to let on long leases pending the hearing of

the appeal.

71 Transcript of Judgment p78 para [4]

72 The lease is at p113

73 The lease is at p79

74 Transcript of Judgment at p38 para [16]

75 Transcript of Judgment at p78 para [2]

20

Conclusion

91. For all or any of the above reasons, this Court was invited to Order that:

a. The Appellants have permission to amend the Grounds of Appeal by

substitution with the Amended Grounds of Appeal;

b. Permission to appeal is granted on those Amended Grounds;

c. There be a stay on terms of the execution of the Order under appeal

pending the hearing of the appeal; and

d. The costs of the application for permission be costs in the Appeal.

92. The Pro Bono Unit cannot, with respect, commit at this stage to being able to

represent the Appellants in the substantive appeal.

93. If the Court feels that the Amended Grounds of Appeal can only be properly

canvassed with legal representation it may wish to consider the appointment of

an amicus.

Representation on the oral hearing dated Dec 4^th was by Jan Luba QC in Person.

94. I need not repeat here the Grounds of Appeal76 that succeeded with the fantastic support of the eminent Mr Jan Luba QC most especially in retaining the transcripts of judgment that held up the permission to appeal for so long, suffice to say they were 1-7 & 11-12. I might add that any costs order if successful be donated to the Pro-bono unit for that hearing.

95. There are a few issues outstanding since the Oral hearing that have been subsequently raised by Ms Flores with counsel. Ms Flores put to LJ Ward in person at the Oral hearing, she was satisfied with the amended grounds as stated generally by Mr Jan Luba QC and she was happy to go along with those Grounds as they stood in suspension until such times as to have further legal opinion on merits but at that stage she made it very clear that she, the courts and the defendant still did not know what Mr Jan Luba’s QC’s (or others at the unit) legal opinion of the case was, on each of the multiple of issues, as she had not as yet been given a legal opinion as to the merits on any of the issues. It was thus very important for her to in state this in court at the permission to appeal hearing to LJ Ward and say that she so wished to reserve some scope to further amend based on the outcome of the awaited legal opinion by volunteers at the pro bono unit (that she had been ordered to approach by LJ Ward to try to put the unwieldy case into some good order for the appeal, for which Ms Flores was grateful as she had had no legal help) or finding of fact that may have irrefutable evidence to further ask for permission to appeal to amend and put forward for the grounds of the Appeal. LJ Ward agreed to this at the end of the hearing. This now after receiving advice and deciphering it will further help the Claimant’s to advance their case where some facts may it would seem have still been missed out and could if allowed to continue on that basis disallow substantial parts of the case because they were not yet pleaded at the Oral hearing. An N244 application for permission to amend crucial grounds and finds of fact has now been lodged with the evidence and amended (Advocates Statement) skeleton argument herein to back the amendments.

96. The laws are so arguable as to require further amendments and the finding of ffact have irrefutable grounds of evidence to so have permission to amend. They are set out separately in the copy of the Grounds of Appeal and have been marked up to show the amendments as well as further stated herein;

Grounds 2a. The judge misdirected himself in his finding of fact that the claimants did not ask for the structure to be repaired and/or did not offer to repair the structure themselves.

Grounds 2b. The judge misdirected himself in law as to his finding of Caveat Lessee. The claimant’s have never complained that the pavement lights should not be there. They complained that the seal was worn (it required bi-annual maintenance) down causing water to leak in, a risk covered by the insurance, with a landlord’s obligation under the terms of the lease to insure and keep in repair at all times against water ingresses.

Grounds 2c The judge misdirected himself that the landlord had in place insurances to cover risks. He found as a finding of fact that the landlord had ‘breached the terms of the insurance’ and therefore no insurance was in place (he later said “fortunately insurances were in place to cover such risks”) which breached the landlords contractual obligations held in the leases. He ought to have directed himself that no cover has been in place to cover the property owner’s liability (POL an insured risk) due to a breach in the terms of the policy by the landlord invalidating cover.

The principle about the insurance is adequately covered by Vural Ltd v Security Archives Ltd15 and is a leading authority in the landlord’s proprietary obligations to make insurance claims as well as covers the harassment of the Claimants leading to eviction.

Grounds 3a. The judge erred in holding that the cistern at Flat 3, situated above 104 premises had simply overflowed. There are no facts from either party that suggest that a minor overflow from a cistern brought down two triple layer ceilings at premises 104 and premises 102 next door. Further the facts brought to trial point to disrepair of the pipes (which are to be kept in repair at all times condition of the policy) leading to the cistern. Notwithstanding the facts as found by him that the insurance terms (as in POL) had been breached leading to no POL payment (an additional cover besides the more simple material damage) whatsoever to date has been paid and further that no material damage claim was ever made for the damaged floor. The lack of any claim for the replacement of the floor escalated over many months to improper inducement and harassment for the claimant to cover the material damage or risk having their rent doubled. Further this incident cumulated in eviction of the claimant’s by the landlord.

Grounds 3b. The judge erred in holding in law that Caveat Lessee could be used for the lack of a fire exit. In part once the landlord had opened the fire exit (albeit still not up to regulation standards) Caveat Lessee could be used but not before it was unlocked. In 104 Lease the Exit which serves both premises, there is a contractual obligation to have a means of escape from fire. The means, as the judge said, do not have to have a particular quality but the escape has to be in place.

Grounds 3c. The judge erred that the landlord had assisted the claimants in making insurance claims and muddied the waters that the claimant’s were in direct contact with the insurers, without specifying the nature of the ‘contact’, in that the claimant’s were simply using the FSA official complaints process to find out the delays as they did not know the landlord had breached the terms of the policy and that was causing delays. The judge did not make it clear that the landlord as set out in the terms of the leases had a proprietary obligation to instigate and make the claims which they did not do so. This breached the contractual obligations in the leases and voided the insurances, meaning no insurances were in place notwithstanding that the judge did make that clear. However the judge did say in a contradictory way on more than one occasion that the landlord had not stood in the way of making claims and/or that the landlord had assisted the claimants and/or repairs could have been made and insurances claimed on later. This does not accurately reflect the fact that there was at no time insurance in place as it was voided and that the landlord directly stood in the way of the claimants being paid and further, any contact with the insurers (the landlords agent) was futile, as the insurers were from the beginning backing the landlord to defend a claim as they too did not want to pay and neither party would say why, keeping the claimants in the dark as to the landlords breach of the policy and putting the claimant’s to strict legal proof, time and cost, to defend their claim unarmed legally against the landlord and their agent the insurers who were using fierce means and the best legal team money could buy them, in a thus far 5 year court case, to make us legally prove (POL) liability, an insured risk for us too as we pay for the insurance.

97. The Pro-bono unit gave substantial assistance to Ms Flores since the Oral hearing and provided subsequently another leading counsel to advise on the merit and the laws applicable. It was here that the two issues that may/may not have been seemingly missed out as to disallow them completely, were a cause of concern for Ms Flores. Ms Flores acting as litigant in person for the bulk of the trial has found it difficult to play a game with this litigation. She knows now that that is how lawyers sometimes play, leaving your best points in and did endeavour to leave some points like the fire exits, the security shutters, the unfair trial and the harassment from the landlord out of the appeal to comply with this way of thinking to a large extent initially and until it was discovered that much more of the claim was cut with legal assistance than she could take. Further the suggestion that Ms Flores exaggerated as was pointed out by counsel as some kind of finding of fact has infuriated the claimant and just to address this for any future reference the point is raised is raised here to put an end to it.

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

The fact that the Judge says that he is well aware (eg: in this case that time, events and dates may have been slightly arie) as stated in this part Judgment after reading our submissions so it is not so one sided, where we say in our defence that ‘because Jo was placed in the witness box for 4 days and not allowed access to her files even though she was representing the claimants in person’ this does not indicate, as was being suggested, deceitful testimony by any memory lapse and that is what this Judgment means above in point 3. Therefore any future reference to ‘exaggerating’ or as the defendants barrister put it, the ‘telling of untruths’ can no longer ‘as statement of fact’ in this Judgment (as was previously suggested by the defendants), as Jo being an ‘unreliable witness’ not be considered as true. That is a now a finding of fact in the second Judgment! It is good the Judge found that after reading our previously unread submissions.

98. The issues of concern for Ms Flores bearing in mind some but now very few of the above points conceded are firstly the ventilation77 and secondly the flooding of 104. Both these issues are crucial to Ms Flores as they were both in play when the trespass took place and were the very issues that without being in the amended grounds could mean that the landlords would have had the right to peaceable re-entry. The set-off (as suggested by counsel and not that we had simply paid the rent so there were no lawful grounds for eviction anyway but ‘set-off’ a legal term was accepted as it is still fact) for disrepair on the other issues may have been too far back as not to hold as much direct relevance on the current issues of the day being named here, that lead to unlawful eviction. The issue of primary fact being irrefutably wrong could be inadvertently left out with those issues side-stepped being more appropriate as to that eviction. Not to amend on just one or two findings of fact voluntarily cuts out substantial parts of the claim without even being judged by a Court which can with respect makes no sense.

99. On the first issue Ms Flores quotes the trial Judge and his finding of fact in his 22^nd Sept 2010 Judgment.77

I mentioned in my Judgment of 9^th Sept the case of Barrett v. Lounova [1989] 1AER 351 and the remarks in it about correlative obligations, thereby anticipating this argument, the effect of which I accept, so far as it is consistent with the law contained in Barrett v. Lounova. But it seems to me that none of the complaints made by the claimants involved asking the defendant to repair the structure

There is irrefutable evidence to suggest that the primary fact of the judge was wrong on this issue, in that the Claimants by there own submissions78 and further evidence in the files79 did in fact ask for the structure to be repaired. In some differing emails80 and even at trial they either asked to do the work themselves, with the required expressed permission as quoted below, to follow the undertakings given by LJ Clarke for Quiet Enjoyment under the terms of the lease for which injunctions were granted;

Ms Flores addressing the judge at the close of the costs hearing before the forfeiture;

“We would like expressed permission from you which has to date been withheld, ignored to put in ventilation…” 

‘As we can’t do it without permission from them, which they won’t give and we can’t get planning permission they have to, to go through the structure or they’d sue us, catch 22, which is nicely convenient for them while the trial was going on..’

“Expressed permission to honour the high court Judgement to allow ‘Quiet Enjoyment’ of the claimant in both businesses to be able to short/long term hire as set out in request letter for the lease as a place for hire”.. 

I was someone who was in care, I had a good project going, I did not take any public money unlike the defendant yet this so called social landlord has done everything in its power never to mediate but to go all out to wreck me and this court has just knowingly assisted them in doing so in this pro-landlord judgment.

so as the Claimant’s could bore holes into the defendants structure (as without this permission they were forbidden to do so) and/or that they asked the defendant to carry out the work themselves as two different insurances covered this repair81, Ms Flores pointing out that for without the repair to the structure under an implied obligation, Barrett and Lounova, the 106-108 shop was unfit for purpose and/or human habitation and left the claimants open to third part litigation, (although only completely realising this in May 2008 hence the complete ceasing of trading from then until eviction in Oct 2008) rendering them completely unable to trade from day 1 and very worryingly even with the undertakings during the nearly two years lead up to the 10 days trial.

100. There was not just one insurer who covered this structural repair, (that would require diamond core drilling into the structure for which the leaseholders could not touch as it did not form part of the demise but for which without repair, the claimants could not forfil their own repairing obligations) there were two so at all times the landlord had the means to repair by a propretory obligation to effect an insurance claim. There was also a HAPM82 insurance in place for any snags, alterations and structural repair that may have occurred for up to 20 years of the full public funding refurbishment and at the time of disrepair was in year 5. Evidence suggests that a form of basis ventilation as in holes in the structure was a requirement before A3 use could be legally put in place and the claimant’s lease of A3 would require those holes at the very least within the structure before they could add any other ventilation.82

101. When the judge finishes his passage on the 22^nd Sept 2010 hearing he adds that

“without which repair the claimant’s duty to repair the demise becomes futile, for the defendant is not complaining of want of repair by the claimants to the demised premises. So that one notices in relation to the leaking pipes, the leaks when identified have been repaired and the extent of liability is in Guilds’ case, essentially that of a neighbouring occupier. Such leaks require special measures.

In this repair special measures require diamond core drilling through (in some places) 4 foot walls and can cost £15,000 as the claimant’s found when they did get quotes to try and mitigate their losses. They also contacted the building control at the council but were told they were not the freeholder so could not access any data with regards to the lack of holes (air-bricks as they are called).

77‘The pavement lights have to be repaired and are more simply repaired and have been repaired and so this is not, therefore, a case of the claimants seeking to require the defendants to repair the structure.’

102. I think with the above quote and the acceptance of the learned judge as finding of fact that this was an implied obligation covered by the authority Barrett and Lounova to repair the structure by the landlord the defendants, alongside the evidence in part (without wasting more of the courts time with all of Evidence file C2, where there is copious amounts of evidence on this request) referenced here as part of the Appeal bundle, there is a real need here for an amendment challenging the Judges finding of fact which would as the judge said confer a cause of action.

103. Having said that since the eloquent QC did leave scope in Ground 2 for the facts raised here to fit in nicely with the ventilation issues;

Grounds 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.

An amendment is necessary bearing in mind the judge did not hear the claimant’s case in court and the defendant did not direct him to the claimant asking for repair in claimant file 2 in her cross examination of Ms Flores.

104. If the court finds that there is an acceptance of the fact the claimant did ask for repair of the structure, then we would respectfully ask that this be dealt with as an accepted small amendment adjusting a finding of fact backed by irrefutable evidence at the start of the appeal.

105. Further we on the second issue ask that the flood be accepted as a disrepair issue and not an accident. The Judge said ‘even if the claimant’s account of events are right, I cannot see that the flood was anything more than an accident’.

The claimant’s submission very much point to a state of ongoing disrepair.83

106. In short, There are two job cards that relate to this flooding they are -1168820- 04.04.05 and -116853- for 05.06.05 both in reference to Flat 3 bathroom (and show timely dates with the incident of flooding in 24.06.05) and not Flat 2 and they show that the flood was foreseeable due to outstanding and ongoing repairs as was typical with this landlord taking months to repair and complaining of lack of access. They therefore failed to keep the neighbouring flats and their pipes in a good state of repair. Since evidence showed this clearly at the time the loss adjuster was investigating POL liability they concocted a story about the leak coming from Flat 2 (no where near the flooded area) and blamed it on the neighbouring occupier leaving the taps on when in fact he was in hospital. Further the Mr UK said in evidence the loss adjuster wrote his statement and he had not signed it. This raises a serious issue as to his independence.

106. Page 184 C’s submissions on liability show repairs job cards: Reported 24.01.05 invoice accepted 06.06.05 Flat 3, showing 5 months delay. Whereas the repair in Flat 2 119853 was on the 29.03.05 – 31.03.05 with invoice accepted 20.05.05. If we are put to proving in evidence that the pipes were in disrepair we have. If the Judge said as fact it was a leaking cistern then that would suggest it did not overflow, which only then would be an accident.

107. Further this claim relating to the flooding was that insurances were not triggered. The first time the insurance knew of the flooding was in August 2005. The only reason the insurers were alerted was that the claimant’s were put to mitigating their losses by full replacement of the ceiling in October 2005 after months of waiting for the insurers to act. What we had not been told was that the insurers had rejected POL because the landlord breached section 2a and 2b of the policy by failing to alert the insurers. Therefore any valid claim for POL by the claimants was challenged to date with fierce mean’s, as UKU/RSA did not want to accept liability and pay. Instead they choose to defend the claim, which would not have happened if the policy was valid. The landlord believed that they should be covered even if they were at fault. The judge did not challenge the finding of fact that the landlord voided the insurance. He said nothing however about the fact that no one told us that it was that causing delays in us being put out of pocket by the whole incident and never compensated.

Further some consequential damage was added to the material damage claim involving the floor as seen in the damp surveyors report Mike Parrett84. This material damage claim should have been simply claimed for but instead resulted in eviction.

108. If the Appeal succeeds and damages are awarded then the Claimant’s ask that the courts observe that a Joint Forensic Accountant Expert Report by Doug Hall has already been commissioned at £8,000 cost to each party on the instruction of the trial Judge. It is respectfully suggested that this report could be used at the 1^st/2^nd May hearing to save costs and further use of court time in an already 5 year long ongoing trial.

76 Grounds of Appeal p24-25 Para [1-7] & [11-12]

77 22^nd Sept Judgment p74 Para [17-18]

78 Claimant’s Submissions on Liability p430 Para [223-224]

79 Evidence File C2 Email regarding the claimant’s asking for the structure to be repaired p431A-C

80 Evidence File C2 Email regarding a claim on one of the insurances for theft of ventilation p431E

81 Summary of Cover Building Insurance Policy CLAIMS SETTLEMENT p457 para1

82 Evidence File C2 148-153. HAPM Insurance. Ventilation requirement A3 Planning use p457A-F

83 Claimants Submissions on Liability p386-395 para106-108

84 Evidence File E1 p348-403

85 Evidence File E1 p200-279 & Evidence File E2 p1-176 Scarlet Maguire & p1-127 spaceshift…

Prepared by Ms Flores

Litigant in Person/ First Claimant.

31st^th March 2013.

Appeal No: B5/2010/2396

IN THE COURT OF APPEAL

ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT

(HHJ Cowell)

For hearing on 4 December 2013

Claim No: CHY09015

B E T W E E N:

JO GAVIN (now JO FLORES)

and

CHANTAL CRACY

Claimants/Appellants

-v-

COMMUNITY HOUSING

ASSOCIATION LIMITED

(now One Housing Group)

Defendant/Respondent

-->

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.

2a. The judge misdirected himself in his finding of fact that the claimants did not ask for the structure to be repaired and/or did not offer to repair the structure themselves.

2b. The judge misdirected himself in law as to his finding of Caveat Lessee. The claimant’s have never complained that the pavement lights should not be there. They complained that the seal was worn (it required bi-annual maintenance) down causing water to leak in, a risk covered by the insurance, with a landlord’s obligation under the terms of the lease to insure and keep in repair at all times against water ingresses.

2c The judge misdirected himself that the landlord had in place insurances to cover risks. He found as a finding of fact that the landlord had breached the terms of the insurance and therefore no insurance was in place (he later said fortunately insurances were in place to cover such risks) which breached the landlords contractual obligations held in the leases. He ought to have directed himself that no cover has been in place to cover the property owner’s liability (POL an insured risk) due to a breach in the terms of the policy by the landlord invalidating cover.

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.

3a. The judge erred in holding that the cistern at Flat 3, situated above 104 premises had simply overflowed. There are no facts from either party that suggest that a minor overflow from a cistern brought down two triple layer ceilings at premises 104 and premises 102 next door. Further the facts brought to trial point to disrepair of the pipes (which are to be kept in repair at all times condition of the policy) leading to the cistern. Notwithstanding the facts as found by him that the insurance terms (as in POL) had been breached leading to no POL payment (an additional cover besides the more simple material damage) whatsoever to date has been paid and further that no material damage claim was ever made for the damaged floor. The lack of any claim for the replacement of the floor escalated over many months to improper inducement and harassment for the claimant to cover the material damage or risk having their rent doubled. Further this incident cumulated in eviction of the claimant’s by the landlord.

3b. The judge erred in holding in law that Caveat Lessee could be used for the lack of a fire exit. In part once the landlord had opened the fire exit (albeit still not up to regulation standards) Caveat Lessee could be used but not before it was unlocked. In 104 Lease the Exit which serves both premises, there is a contractual obligation to have a means of escape from fire. The means, as the judge said, do not have to have a particular quality but the escape has to be in place.

3c The judge erred that the landlord had assisted the claimants in making insurance claims and muddied the waters that the claimant’s were in direct contact with the insurers, without specifying the nature of the ‘contact’, in that the claimant’s were simply using the FSA official complaints process to find out the delays as they did not know the landlord had breached the terms of the policy and that was causing delays. The judge did not make it clear that the landlord as set out in the terms of the leases had a proprietary obligation to instigate and make the claims which they did not do so. This breached the contractual obligations in the leases and voided the insurances, meaning no insurances were in place notwithstanding that the judge did make that clear. However the judge did say in a contradictory way on more than one occasion that the landlord had not stood in the way of making claims and/or that the landlord had assisted the claimants and/or repairs could have been made and insurances claimed on later. This does not accurately reflect the fact that there was at no time insurance in place as it was voided and that the landlord directly stood in the way of the claimants being paid and further, any contact with the insurers (the landlords agent) was futile, as the insurers were from the beginning backing the landlord to defend a claim as they too did not want to pay and neither party would say why, keeping the claimants in the dark as to the landlords breach of the policy and putting the claimant’s to strict legal proof, time and cost, to defend their claim unarmed legally against the landlord and their agent the insurers who were using fierce means and the best legal team money could buy them, in a thus far 5 year court case, to make us legally prove (POL) liability, an insured risk for us too as we pay for the insurance.

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.

Prepared by:

Ms Flores

31^st March 2013.