In summary Jo shall demonstrate that the Judgment of the
09/09/10 relied for the most part on the defendant saying that they ‘knew not’
where the ‘source’ of the leaks came from and the Judge accepting this as an
explanation for these issues of disrepair suffered by her in the case of Gavin
& Cracy v CHA & OHG;
Two leases were obtained by Jo who has worked in children’s
right’s since 1987 lease one was in 2000 and the second lease of the shop next
door was in 2004.
The businesses were Scarlet Maguire art gallery at 104
Cromer Street and spaceshift.. a contemporary multi-functional space available
for hire at 106 to 108, Cromer Street, St Pancras International, London WC1H
8BZ.
, both were social enterprises aiming to establish an
independent youth economy and both were highly refurbished by the claimant
three years before the arrival of EuroStar and the thriving business community.
The landlord was at the time Community Housing Association
registered social landlord who had been given 17 million pounds public money in
1999 to refurbish the building so it was effectively a new build, therefore the
new build regulations applied that the building be fit for 7 years and ‘buyer
beware’ caveat lessee cannot therefore be pleaded for lack of ventilation.
£400,000 specifically for the six shops on the street was further granted from
the Kings Cross regeneration partnership (Jo knew of this as she had applied
for an awning canopy for Scarlet Maguire and was told the money had been given
to CHA). At the time of trespass and eviction One Housing Group had just merged
with CHA for a few weeks and new OHG management harassed and trespassed to
effectively rid CHA of the ongoing claim for ‘liability’.
106 premises – rainwater leak – 7 months to stop the water
ingress
104 premises - stack pipe leak – 4 months to stop the foul
waste ingress
106 premises – stack pipe leak – 2.5 months to stop the foul
waste ingress
104 premises – Flooding from above – 7 months for full
ceiling reinstatement
106 premises – rainwater leak – 4 months to stop the water
ingress
106 premises – rainwater leak – 24 months and fixed only
after repossession
Electricity Cupboard between premises – pipe leak in ceiling
– 3 years to locate
106 premises – Broken fire panel and smoke detectors –
claimants replaced
106 premises – Dangerous wiring throughout spurs not ringed–
claimants fixed
106 premises – No flooring paid for by public. Claimants had
to put one down.
106 premises – No security shutters to date although paid
for by public grant.
Between premises leading to fire exit – No emergency
lighting 3.2 years to fix
106 premises - No ventilation or airbricks rendering the
space illegal - not fixed.
Between premises – Fire exit locked and door swinging inward
– 3.2 years to fix
The entire building - Commercial & residential tenants,
no fire certificate to date.
Both premises – Breach of duty and of contract on leases
regarding building insurance, claims not being made, making the building
insurance void, so no payment for claimants when interrupted in business for
over 10 years on and off.
Harrassment, bribery, fraud, trespass and eviction plus
putting the claimants through a to date three years court case (never mind an
outstanding 8 year claim on the building insurance) to defend the claims and be
reinstated to the premises.
Insurances never paid to date and shops unlawfully taken by
force.
Corruption at the trial with this ‘public body’ with many
connections to the judiciary not being recognised to date as is now European
Law that they have influence so a Judicial review needed.
Still dragging us claimants ‘acting in person’ through the
courts without legal representation as the insurances are paying their
‘defence’ (a commercial decision they are allowed to take FOS investigating)
‘legal costs’ and not ours as they have ‘triggered’ the ‘defending a claim’
clause when it is us that is the ‘defendant’ since we were unlawfully evicted.
The building insurance has no cover for ‘landlords and
tenants’ disputes (of trespass) but is defending them anyway to save the claim
on the liability insurances because it is in their interest to leave us on our
knees.
The notes of 9.9.10 judgement of Bircham Dyson Bell
solicitors LLP the defendants (landlords and insurers) solicitors.
My notes will be in italic
in response to the other sides solicitors note on the HHJ Cowells Judgment
09/09/10 which was sent to me in the last few weeks by the Civil Appeal Court
stating that they were having trouble from the lower courts obtaining the
Judgment so have contacted the other sides solicitors for their incomplete
‘notes’ to now speed things up and that the Lord or Lady Justice will look now
at the Judgment and make a decision as to whether we have ‘permission’ to
appeal.
I have had no legal help at all so if I am wrong re my
interpretation of the law in the following I don’t know it yet that well as
only had it a few weeks and could do with someone telling me but to me it seems
just like common sense in the application of the ‘laws’ the Judge has stated that
he used. So please read the ‘law’ part below of about 10 laws used on just one
page below, as it seems not as difficult to understand as it initially looks to
read:
Case LAW relied upon by His Honor Judge Cowell on 09.09.10
Judgment;
Vural – Lessor (landlord) owes ‘duties’ – lease implies
‘contract with insurers’
Barrett v Lounova – If exterior of the premises is demised
(in our lease) then ‘implied obligations’ arise. If not it is more helpful to
look at it as the landlord is the ‘neighbouring occupier’ – ‘Liability’ (fault)
is as described in Cockburn V Smith and mentioned in Barrett v Lounova, where
“the owner is in possession and control” so it is appropriate to regard as the
‘neighbouring occupier’ rather than landlord – Barrett v Lounova – Business
Efficacy – Correlative Obligations –
Jackson v Watson – Defect faulty construction
Clerk and Linsell – Escape of water – “reasonable time after
‘notice’ is given”
Gordon v Selico – Pleaded as an ‘implied term’ and
considered more appropriate to look at it as such
Sedleigh v Denfield – “Nusiance” – Caused by the ‘state of
the things’ on ‘neighbouring’ land, ‘knowledge’, ‘fails’, breach of ‘duty’.
Duke of Westminster v Guild – Drain between claimants shop
and owners land. Claimant had ‘easement’ rights (i.e the drain can flow
between). However the claimant had right to repair it too and the landlord did
too but did not have to as had no ‘repair obligation’ to. Claimant fixed and
did not pay the rent so landlord could pay a fair proportion. Claimant had no
right to stop his rent.
Hargrove Aronson v Hartopp – Claimant gave the landlord
‘notice’ to clear a gutter above that may overflow and cause damage. Gutter not
cleared and after two days ‘notice overflowed. It was held that damages were
given to the claimants as they had ‘given notice’
Duke of Westminster V Guild – “Cause of Action” – “Duty of
Care” with references to Lord Millet’s Judgment in Southwark v Mills pg 25 F-G
–
More references to ‘Guild’ in Lord Justice Slade’s Judgment
in the case of “Hargrove” Aronson v Hartopp and in the case of Cockburn v
Smith. “Hargrove” Aronson V Hartopp and Cockburn v Smith can be summarised in
‘Woodfall’ 28th Edition 1-1469 page 621 –
In the case of Cockburn v Smith it was similarly the case
‘liable for damages suffered by her’ but
Lord Justice Scrutton ‘modified’ this, as ‘preferred not to
say’ whether the ‘duty’ arose out of ‘contract’ or a ‘duty’ to take ‘reasonable
care’. In any case all this can be called the ‘Guild’ principle for short.
Woodfall – ‘Damage’ – Lessor (landlord) ‘retains control’
and ‘maintenance’ is necessary for the ‘protection’ and ‘safe enjoyment’ so the
‘lessor’ (landlord) has ‘lessor obligations’ to take ‘reasonable care’.
D’s Solicitors incomplete ‘notes’ of Judgment of HHJ Cowell
09/09/10 at the Central London County Court
I should briefly explain how this litigation began. D’s
sought to forfeit the leases on the grounds of non-payment of rent (no rent outstanding as had paid
£6,000 quarter up till Jan 2009 and D’s claim to have lost the cheque. History
shows claimants always paid rent in all 9 years) by peaceable re-entry
on 29th Oct 2008. C’s went to court on an ex-parte hearing before
Judge Clarke on 4th Nov 2008 where he granted interim relief (two successful high court injunctions)
permitting to remain and further relief on terms (C’s
be given continued injunctions against the landlord with terms for ‘quiet
enjoyment’ and a request by the Judge that the matter be dealt with at speed so
he gave 3 weeks to draft ‘POC’ Particulars of Claim and it was to be dealt with
at the Central London County Courts) on 14th Nov 2008. It was
directed that they should specify the ‘nature’ of their claims against D, which
was then understood to such as to amount to a counterclaim which, if sufficient,
would indicate that there was no rent owing at the date of the forfeiture.
I go back to the matters with which this judgment is
concerned
First April 2004 gaps between the glass bricks in the
pavement construction immediately above the basement of 106-108 let water
through – photo G1/71 this shows repairs being done at a much later date, 15th
Oct 2006. Gaps let water through. In Sept 2004 repairs to the gaps were done by
Kingsbury Construction, the company which had originally inserted the glass
bricks and dealt with the gaps. Later on 20th Jan 2006 the insurers
paid £150 having taken into account the excess of £100 for what… briefly
described as rainwater ingress, that being one of four items paid. Details at
D3/75 (very misleading ‘opening’
and somehow indicates the pavement ‘gaps repair’ costs £150 when it costs
thousands of pounds. HHJ Cowell is talking of one area of a outstanding patch
repair payment to the inside ceiling paid for by the claimants and then later a
‘material damage claim’ on the building insurance finally paid for in Jan 2006
when the D’s put in a shoddy claim in Aug 2005 that reimbursed this material
damage claim, alongside three other items the claimants were forced to pay for
including a £3,000 ceiling replacement because D’s did not fix or further
because more delays would put the claimants out of business). Pavement
not demised to the claimants so the C’s do not have a ‘duty’ to repair. That is
not to say that anyone else does but I will consider what, if any, obligation rests
on the D to do so and the exact extent of that obligation.
Page 7 of notes on Judgment– Waste stack pipe – 104
Particulars of Claim (POC) 15-19 & 50 (xii and xiv)
Schedule Page 21
Sept 2004 one of the waste stack pipes which carries sewage
from flats above and which passes close to the rear wall demised to the C’s at
104, damaged the wall and caused the odour of sewage to permeate.
‘Hint at “cause of action” relied upon appears in paragraph
5(i) – (iv) and 6.
Word ‘negligence’ appears but difficulty to see what
particular allegation could be made for none ‘expressed’. D’s (defendant’s)
point ‘one thing ‘knowing’ other
thing ‘locating’ source’. Question, whether reasonably prompt action taken once
‘cause of leak’ discovered and whether ‘ought to have been discovered
earlier’.’
HHJ Cowell uses; job card 27th April 2004!!!
(Completely
different job card to the one for this leak, there was another leak 5 months
earlier in the same place so the defendant ‘ought’ to have known source of
leak. No claim for April/May 04 business interruption made on this leak as
fixed promptly).
Appointment made 5th May 2004!!
Flat 3 (above
back of gallery where flood occurred, flat 2 is above front of gallery where no
leaking ever took place)– 12th May 2004 wall tiles repaired
or ‘due to be repaired’. Wall tiles completed on ‘Oct 2004’! – None of this
mattes as not from flat!
Reported – ‘Sept 2004’ – “probably” the case the D’s
‘thought’ tiling would cure it.
(Use of word
‘pinhole by D’s and crack by C’s) .HHJ Cowell mentions ‘large
organisation with staff to fix’ (important
as in the ‘means’ to fix is set out in the leases clause 7 to repair with
‘speed’ subject to the ‘means’ to do so)
Applying the law in ‘Guild’ case, ‘in all the circumstances’
D’s ‘not in breach of “duty” because ‘inspected’ and did works in flat above in
‘bona fide’ belief, ‘source’ lay there and because on ‘discovery’ real cause,
remedied leak “reasonably” promptly (31st
Jan 2005!). Simply add that ‘fortunately’ (joint
building insurance which C’s (claimants) paid for too as set out in the
contract of the lease) had ‘insured’ against ‘physical damage’ and D’s
agents assisted C’s to claim and receive in their name (completely untrue no claim ever made and no money
received either on this leak as D’s fixed it albeit 4 months later with their
‘mean’ which were a whole residential repairs department although should have
put in a building insurance claim and a private contractor brought in to trace
and remedy ‘promptly’. However a ‘liability’ claim for business interruption
under the ‘POL’ ‘property owners liability’ section of the building insurance
and ‘Cessor of Rent’ under the cessor of rent because the building is unfit for
trading covered in the building insurance policy, claim is still outstanding to
date and rent was paid by the claimants while they could not trade),
insurance money.
In relation
to the point above stating that ‘no cause of action’
has been
‘expressed’ only a hint in reply which you can have a whole section thrown out
for right or wrongly, the ‘cause of action’ was clearly expressed on several
occasions but just to say the lawyer Vikram Sachdiva whom the claimants
employed briefly to make the POC clearer on request form the D’s and the Judge
when HHJ Cowell raised the point about clearer POC in the early days of the
trial in 2008, Vikrams’s amendment were not accepted see in bundle A tab 2 pg
14. In an email from Vik to the Judge 19th April (plus see order)
2010 he states; “you disallowed the amendments because in your view it did not
assist you further in clarifying the claimants case which had been explained to
you orally at the hearing; and also because all claims made in the ‘amended
particulars of claim’ were
‘already’ contained in the original particulars of claim apart from the
‘statutory harrassment’ claim. It is entirely appropriate that that reasoning
is reflected in the preamble. Also: “you allowed the claimants to rely on the
schedules as an amended statement of case”. No application for costs therefore
no juristiction to make such an order now.
In relation
to the head of this point where HHJ Cowell stated there was ‘no cause of
action’ we would like to spell out what is in paragraph 19 of the POC that is
as he says only a hint at cause of action. Though in not drafting POC properly
can make a case rightly or wrongly thrown out we would say that alongside the
order and the amendments that were thrown out the POC are very clear;
Paragraph 19
POC in relation to this incident the cause of action states “in breach of the
leases” and the particulars (viii) and (ix) clearly state ‘failed to make
claims and failed to keep apparatus in good state of repair’ as the cause of
action so could be both “contract” as in “lease” or “duty of care” to ‘take
reasonable care’ Guild for short, all causes of action. Duke of Westminster v
Guild, Hargrove ‘failed to clear out after a few days notice of slippage’ and
Cockburn ‘liable for damages suffered by her’ and summarised in Woodfall ‘Lessor retains control, maintenance
necessary for the protection and ‘safe enjoyment’,’ lessor has ‘obligations’ to
take ‘reasonable care’. Held ‘breach of duty’ and the question in our case is,
what is reasonable so if comparing to Hargrove ‘notice’ of damage was just a
few days! Just to add that Lord Justice Scrutton modified as ‘preferred not to
say whether ‘duty’ arose out of ‘contract’ or to take ‘reasonable care’
Further or alternatively
and for the avoidance of doubt ref: Vikram Sachdiva’s email where 3a-d and 3A
and 3 B where no defence amendments were required, in the amended particulars
it clearly ‘expresses for waste stack pipe 104, Bundle A – Tab 2 – page 14; 3A
“There were express terms of both leases that the Claimant should have ‘Quiet
Enjoyment’ of 104 and 106 as against the landlords and all persons claiming
title through the landlord”. Also 5. 6. 7. 8. 9. In the POC for example 8.
“further and or in the alternative, the facts and matters set out herein above
and in the said schedule (7.) constitute an “Actionable Nuisance” . ‘Duties’
owed to make insurance claims page 18 POC and (all expressed) (i) Quiet
Enjoyment (ii) Lease Breach 7.(2) (iii) Failure To Make Claims (iv) Repair –
Lease Breach (v) Nuisance.
7th Feb 2005 – Leak into bathroom – No sooner
than that was dealt with, then another leak occurred on 7th Feb
2005.. small drop in bathroom in basement of 106 next to rear wall was first
sign of the leak in another stack pipe which served the flats above and which
passed close to the rear wall demised to the C’s… That leak stopped 26 April
2005.
Para 50 (xv) and (xvi)
Alerted D’s 7th, 8th and 14th
Feb 2005.
Visit Mr UK 28th Feb 2005 – Works order raised –
“doesn’t matter the source”
(21 days
already after ‘escape of water’, reasonable time after ‘notice’ ‘Clerk and
Linsell’ plus prior ‘knowledge’ of pipes bursting on the site of the demised
next door a week before so ‘ought to have known source’ and investigated ‘trace
and remedy’ as set out in the building insurance policy and clause 7 of leases)
Reasonably clear a month later that (flat 1. above who reported a leak to their ceiling so
how that had any bearing to the shop below remains to be seen as their floor
not effected and that was fixed 28th Feb) not cured cause of
trouble because the 29th March (50
days later and saturating the wall now 9 feet of foul toilet sewage. On 29th
March Mr UK had now only attended the demised twice claiming he was attending
to leaks above) leak reported again.
I am not sure if on 1st April or 4th
April it was the Easter weekend before that, (irrelevant
emergency repair should be fixed in 48 hours if foul) clearly damp on
the wall (sorry to say but it
was brown excrement see photos hardly described as damp!)
6th April further complaints so Mr UK raised
order for 8th April then 11th April, for replacement of
duct casing and reinstatement.
By 15th April 2005 show brown staining! Benefit
of hindsight “naive” belief would dry out and not “spread” because we now know
that it was a serious leak in the waste stack pipe.
A ‘carpenter’ attended on the 8th April – Nothing.
A ‘plumber’ appeared also nothing.
A ‘plasters’ the day after the photo was taken (25th April?)
25th April casing taken off
25th – 26th Ghastly flood of foul
material.
29th April had been done!
(No mention
of Jo begging the plaster to take down the wall to see if there was a leak
behind as had been the case next door and that it was not his job but every
contractor was stunned with the repair and refused to touch the job. Nor that
on discovery of the cracked stack pipe in the premises wall in the basement and
above on the shop floor which wall was too taken down as one could see crack
was coming from above, that the walls were simply left open and despite
emergency request, emails and numerous calls that evening for open pipe to be
fixed that day it was left overnight and despite Jo’s anxious efforts to
prevent a foreseeable foul waste flooding it of course occurred damaging the
newly laid wood floor with foul waste as far as the corridor downstairs and
into the kitchen bar upstairs on the wood floor on both).
Renovations much later because amongst other things, as
insurance matter, estimates had to be provided (why
different to April 2004? Mitigating losses is what the landlord should have
done and eventually voided the policy over, that and making claims too late.
Quotes were not even asked so I don’t know what HHJ Cowell is saying estimates
were needed as an excuse for, for they simply just left the walls open for
months after they stopped the leak. It was only after the flooding next
incident that they even notified the insurance as lumped all claims together as
we had the walls fixed ourselves at the same time as fixing the ceiling in Oct
2005 and were not reimbursed until Jan 2006 for the material damage claims,
which incidently is the only reason we were paid direct from the insurers as
they should have no contact with us we deal with the landlord they deal with
the insurers as in the lease and they receive monies as they should be the ones
with the ‘means’ to fix and then they get their money back later, not us as was
the case for direct contact with the loss adjuster. Why were estimates only
asked for after the next flooding?)
Letter 12.08.05 seeks compensation £10,000 (yes because Jaqui Greene the D’s
commercial manager explained to Jo privately that the excess was £25,000 and
this was a difficult claim, so Jo was being helpful with the request and added
in other things that would make up the difference as to the claimants actual
losses to date which no one was appreciating in terms of equity, hard cash had
been and was continuing to be lost, lots of sleepless nights waking knowing one
was being robbed and still paying rent and business rates on a daily basis and
that is real money which is agonising for a small business to suffer such a
financial burden while all others dragged their feet in indifference with all
the time in the world!!)
Eventually polish builders did the works to the ground floor
Oct 2005. Insurance payment followed 2006.
Held in my Judgment was sufficient (perhaps he means notice?) at beginning of April
2005 to alert Mr UK to realise that the waste stack was the cause of the leak.
1. Only
two months before leak in similar place at 104
2. Leak
even if was Flat 1, had been cured a month before on 28.02.05
3. Despite
his evidence that he didn’t smell anything beyond damp there is sufficient in
C’s evidence to indicate that there was a smell denoting foul water and the 15th
April photo’s support the evidence.
So 1st or 4th Mr UK should have raised
an order not just for the renewal of casing, but for removal and sealing of any
leak and thereafter renewal. And had that been done by the end of the week 8th
April a delay of 3 weeks would have been avoided.. C’s is “good” for loss
suffered on account of that 3 weeks delay.
Means of knowledge was with Mr UK on 1st April or
4th April (why not
Feb 28th when repair to ceiling fixed of flat above or 7th
Feb when they had knowledge of same occurrence next door the week before and
why not 48 hours later on the 9th as in Hargrove and because of health and safety
regulations and why not because no insurance claim was made to trace and remedy
breaching the insurance on the leases?).
I do not find that D in ‘breach of duty’ simply by reason of
the leaking, such things happen and insurance (when
was the insurance alerted? Contract!) is there…. Was a failure to remedy
the leak from the time when ‘ought’ to have appreciated was waste pipe… (like immediately the excrement
showed) by the time ‘had means of knowledge’ .. location waste pipe
known ‘particularly’ well by D’s surveyor. No ‘breach of duty’ of D on
‘Insurance’ claim. D’s employees responded!
Question
‘Reasonable Care’ “Responded” what is that in law? Woodfall 28th
Edition 1-1469 page 621 ‘protection’, ‘safe enjoyment’, ‘reasonable care’?
Hargrove 2
days ‘notice’
‘Knowledge’
prior repair a week before at 104?
‘Insurance
claim’ none put in until August 2005 should have been put in, in Feb 2005?
All
Expressed causes of Action in POC
(vii)
Negligence on repairs
(viii)
Negligence failure to make claims
(ix) Failure
to maintain pipes in good state of repair
(xiv)
Nuisance
Contract of
lease
6 (5)
‘Landlords Liability’ in the leases ‘implied’ vice versa that if tenant does
anything to void insurances and does not mitigate losses the same is ‘implied’
as applies to landlord. Insurance stated the landlord broke the terms of the
insurance by not mitigating so that they believed POL was not payable and
therefore refused to pay triggering the second ‘liability’ insurers RSA (excess
POL Royal and Sun Alliance) who argued with UKU and said it was a joint claim
and then they all didn’t want to pay so took the claimants through a protracted
presentation of the claim breaching pre-action protocol.)
7 (2) The
word ‘other than’ (in cessor of rent) means all monies are paid from the
insurances to the landlord.
Unusual if
tenant is put to paying to mitigate losses on the building repairs that are
outside of their demise. Plus there was no claim from the claimants as HHJ
Cowell suggests for MD Material Damage.
Clerk and Linsell
– Escape of Water – ‘reasonable time after notice!!’ (same day 7th
feb ‘notice’ proved! Tort - ‘Nuisance’!
Hargrove:
‘Notice’ Warning of flooding when wall opened up! Flooding of foul waste
occurred, with damage suffered to her health, clothes the next day, materials,
floor and mental health.
Breaches in
Law
Quiet
Enjoyment – Woodfall
Contract
‘breached lease’
Vural –
Dragged their feet with the insurances
Damage –
Where the lessor retains control maintenance necessary for the protection, safe
enjoyment, lessors obligation to take reasonable care.
Wood fall +
Barrett v Lounova + Cockburn
The landlord
wants to look at themselves as neighbouring occupier as in Barrett and Lounova
but in that case Business Efficacy comes into play and there are correlative
obligations to ensure that.
Vural –
Lessor owes duties, lease implies – contract with insurers
Clerk and
Linsell ‘escape of water’ reasonable time after notice
Sedleigh –
Denfield – Nuisance – Caused by the state of things on the neighbouring occupiers
land, knowledge, fails, breach of duty
Scrutton LJ
Modified preferred not to say if duty arose out of contract or duty to take
reasonable care.
If no ‘duty’
arose how can HHJ Cowell award ‘damages’? Cockburn liable for damages suffered
to her.
Tort – Smell
Cessor of
rent – nuisance or modified from LJ Scrutton ‘contract or duty’ suggest both.
Means of
knowledge ‘He had ‘known’ on 1st or 4th April says HHJ
Cowell but also says similar at 104 so means of knowledge we say on Feb 7th
2005.
Insurance claims
D’s ‘responded’ since HHJ Cowell did not find ‘breach of duty’, as seeks to
repair, remedy however the upstairs repair was done by 28th Feb and
Clerk and lindsell says ‘reasonable time after notice’ so what on earth in law
is the word “good” for three weeks referring to exactly? What law is ‘good’
exactly with reference to insurance?
POC and cause
of action made clear
(i)
Quiet
Enjoyment
(ii)
Breached leases failed to comply with
paragraph 7;
“all
convenient speed to lay out and apply in rebuilding repairing or otherwise
reinstating”
(iii)
Defendant expressly obliged to effect claims on insurance policy promptly.
(iv)
Instigate repairs and remedial action promptly, risks covered by building
insurance
(vii)
Negligent in delaying repairs causing increased damage/loss of business
(viii)
Further negligent failing to effect promptly or at all claims on the insurance
causing ongoing damage/loss of business
(ix)
Failing to keep pipes in good state of repair in neighbouring flats when
foreseeable damage would be caused.
Next event flood at 104
POC Para 24-27
Particulars 50 (xvii) and (xviii)
Insurance mentioned at paragraph
28
Schedule 22 -4
Reply first document that ‘hints’
at ‘cause of action’ in ‘breach of leases’, ‘negligence’.
On 24th June water
from an open tap or leaking cistern in the flat above inundated 104 about a
week before an exhibition. The replacement of the ceiling was finally done in
October 2005 and the cost of that, after deducting £100 and other related
costs, was finally paid by the insurers directly to C’s on 20th
January 2006. This item was £3,441.65 cheque directly to C’s.
Also sub-plot said floor damaged
by the incident
POC – 29-32
Particulars – 50 (xix)
Schedule 24-6
Flood on 24.6.05 was an
unforeseeable accident
Mr UK’s knowledge gleaned from
others
No fault on D’s part
Whether fault of occupier,
insurance was interested in that.
No ‘cause of action’ in respect
of the matter.
Repairs done very promptly and
largest element of payment made by insurers
It was after the insurers paid
out there were complaints about the floor.
Suggestion that C’s should have
included
Because no liability attached to
D’s because employees assisted rather than hindered. I accept D’s final written
submissions.
There
are two job cards that relate to this flooding they are 116853 for 05.06.05 and
1168820 04.04.05 both in reference to Flat 3 (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. As 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 and blamed it on the neighbouring occupier leaving the taps on when in
fact he was in hospital. They went as far as to make up that a ficticious
social worker entered the flat to turn the taps off but could supply no name or
evidence of this. This laughable story has proved in the case many times to be
undone as a pack of lies to avoid liability included the loss adjuster stating
to the insurers that the surveyor Mr UK was leading them up the garden path. It
must be noted that although HHJ Cowell decided in the end that it did not
matter which flat the flood came from as he judged the flooding as an
‘unfortunate accident’ covered by the insurances and said that the D’s did not
stand in the way of the C’s claiming on the insurance and assisted, this fact
remains untrue. The flood also damaged all the stock in the next-door shop as
it saturated to their basement from the shop floor ceiling. They suffered
months of foul smells, damp, mould and because they did not have the ware with
all to challenge the landlord they have never had any repairs effected to date
nor have they been compensated for their losses to date 100’s of saree’s to
date. I might add other than the ceiling replacement which we paid for as it is
a white art gallery and mould growing out of the walls and into the paintings
forced us to close the show and have the ceiling replaced so apart too from
some stationary stock damaged nor have we. Three pieces of artwork were damaged
and should mould grew into the back of them during the show. We had to pay the
artist for them.
Mr
UK states he visited the Saree Palace at 9am and our shop was locked. Did he
notice on arrival as we did that the windows had water all over them at 104. He
had ‘knowledge’ of the flood did he notify the insurers?
The
eventual curling up of the floor tiles was foreseeable for the D and for the
loss adjuster who must know unlike us at the time that this can be
consequential damage suffered later. It was therefore a straight forward
addition to the claim. When the rotten tiles were removed in Jan 2008 as the
landlord paid no attention to our complaints so we took them up the floor was
mouldy. Jim Gorman of the D’s took photographs in Jan 2008 and later claims to
have lost them when the UKU building insurers asked for them after the D’s
dragged there feet yet again making a claim for the floor. The world’s most
famous damp surveyor Mr Mike Parrett bore a hole into the floor to check for
seepage and found and photographed that the floor underneath had too been
flooded. The report paid for by the C’s was available at the court trial.
HHJ
Cowell states somewhat repeatedly
that we have no cause of action throughout this case. The cause of action is
clear in POC and cause of action made clear
(i)
Quiet
Enjoyment
(ii)
Breached leases failed to comply with
paragraph 7;
“all
convenient speed to lay out and apply in rebuilding repairing or otherwise
reinstating”
(iii)
Defendant expressly obliged to effect claims on insurance policy promptly.
(iv)
Instigate repairs and remedial action promptly, risks covered by building
insurance
(vii)
Negligent in delaying repairs causing increased damage/loss of business
(viii)
Further negligent failing to effect promptly or at all claims on the insurance
causing ongoing damage/loss of business
(ix)
Failing to keep pipes in good state of repair in neighbouring flats when
foreseeable damage would be caused.
(xvii) In June 2005 the Defendant failed to
remedy the
damage in the first premises caused by a burst toilet cistern in a flat
above which they owned. The ceiling of the art gallery had to be replaced. The
Defendant failed to effect repairs. As a result the Claimants suffered
interruption to business from June 2005 to January 2006 and had to effect
repairs to the ceiling themselves.
(xix) In January 2008 as a result of the
aforesaid cistern bursting the flooring of the first premises had to be taken
up. The Defendant failed to effect any repairs/replacement flooring and/or any
insurance claim in respect of it. The claimant’ business was interrupted from
June 2005 to the present.
Also in the
lease clause 7 “means to repair” we provided evidence in court that the D’s
contractor FWA were also the contractor of the Ministry Of Defence and could
easily effect ceiling replacements as set out in their website.
Instead
without the C’s paying for the replacement ourselves the D’s would have left us
to it as they did next door and the only reason we were issued with a cheque
directly was because we had paid for the job to be done ourselves. The excesses
we paid therefore are still owed to us as we were not the ones to have to pay
them, if the D’s had simply done the repair and claimed on the insurance at a
later time as is normal. We pay the landlord a fair proportion of the insurance
as set out in the leases and they do the job or get in private contractors to
do the job if they don’t with a full residential repairs department have the
means. The flood was the neighbouring occupiers flood from a faulty cistern so
the excess cannot be ours as we don’t have the flat upstairs demised to us.
Further we
suffered harassment from OHG and from Woolf Simmond’s solicitors on behalf of
the landlord where they used improper inducement over the lease re-newal and a
section 25 order to try to get us to drop our ‘liability’ claim against them.
These were not offers to settle as stated in the costs hearing at a later date.
The floor situation lead to forcable re-entry and trespass. It is a claim still
outstanding on the insurance which both the D’s surveyor and ours stated was a
straight forward claim for replacement on the insurance policy for material
damage.
We suffered
loss, damage, statutory harassment and trespass as a result of the floor claim
and the claim for structural repair of the air-bricks to be put in. Our rent
dates were changed just weeks before to be on the same day for both premises to
assist the landlord OHG in a breaking and entering double eviction and
forfeiture for what they said was non-payment of rent yet their finance
department claimed cheques had gone missing.
Final point
HHJ Cowell accepts D’s submissions but later admits he did not even read ours
of 92 pages and 245 paragraphs which too, show ‘causes of action’ on
‘liability’.
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. Also the repair in Flat 2
119853 on the 29.03.05 – 31.03.05 with invoice accepted 20.05.05
Point 15 of
our amendments – Trespass, which has been ignored completely as part of this
counter claim
The loss
adjuster for the building policy insurance Mr Hines stated there was a
protracted delay 31st July 2006 – 21st Sept were Mr UK
was ‘unavailable’ therefore he states he ‘cannot make progress’ Mr Hines asked
for work orders.
June 2006 104
lease expired. Letter from Woolf Simmonds 16th July 2006 D’s
solicitors, trying to bribe us to drop the claim during the period whist
waiting for a decision on ‘Property Owners Liability’ from Royal and Sun
Alliance ‘excess POL liability insurers’ within a three month protocol which
was then breached to date with still no word from them. FOS has involvement
since 2006 and are currently still investigating.
It was not
the last time this cistern caused a leak below. That is why Mr UK is telling
untruths to hide the truth of dierepair.
The case is
negligence, cessor of rent, expressed covenants for Quiet enjoyment – failure
to respond timeously with remedial action to the flat above. Also in point 7 of
amendments.
It mattered
not in the first instance that they did not respond to our flooding as the
damage was done but that they failed to keep above in a good state of repair.
Therefore to say they “responded” is in both cases of before and after is
incorrect.
Case Laws
Vural –
Lessor owes duties – Implied in the contract with the insurers.
Statutory
harassment laws.
Barrett V
Lounova – Business efficacy – correlative obligations.
Scrutton LJ
Modified – preferred not to say whether duty arose out of ‘contract’ or ‘duty
to take reasonable care’.
Breach of
lease clause 7 with the insurance POL, speed, means
Sedleigh –
Denfield – Nuisance caused by state of things on neighbouring land,
‘knowledge’, ‘fails’, ‘breach of duty’
Duke of Westminster
v Guild ‘duty of care’ to keep pipes in good state of repair.
The next matter concerns the pavement lights
POC 7 – 14
50 (x) (xi) (xii)
Schedule pg 20
Three different periods:
April 2004 – The reply 3 (i) – (iv) and para 4 only
indication of ‘Cause of Action’ are words “in breach of leases” and
“negligence”
June 2006 – Oct 2006
POC 44, 45 and 50 (xx) and (xxi)
Schedule Page 29
June 2008 – Again only reference to ‘Cause of Action’ in
reply 13-16 ‘Breach of Lease’, ‘Negligence’ and ‘Breach of Building
regulations’
Already discussed ( notes of the other sides solicitors here
say (not?) So unclear what the judge said here which is the reason we still
need the official transcripts) been demised to C. If it had been their
obligation to repair possession and control must have been retained by D,
subject to public way or highway.
Difficult to argue Guild that the principle in ‘Guilds’ case
cannot apply and any landlord is well advised to repair and that appears to be
the attitude of Jaqui Greene. In the very nature of the material securing the
pavement lights that may leak from time to time unlike a water pipe. If pipe
does leak clearly alerts occupier to urgent need to remedy and remedy pipes
require jubilee clips and degree speed and skill not readily effected by
tenant. But because a tenant in the position of C’s in this case could so
readily reach the pavement lights to do the repair and thereby relieve D of the
‘duty’ the tenant could very easily mitigate damage. Tenant would be better
aware than D in this case that leaking!!! Make these observations so that the
principles of law are not detached from reality.
D’s short answer in this case Caveat Lessee
Satisfied defect at the time of grant
May 2004, Mr UK first response, landlord not responsible and
that is another matter which is debateable.
First written evidence Jaqui Greene emails 15.10.04 D1/125
and 25 ND 25.10.04 after she had written those one finds works were done by
kingsbury.
Identity of Kingsbury recently discovered by C’s and works
done by them 01.11.04
‘Notification’ that Kingsbury was the contractor given to
D’s by Sept 2004.
You have to
look at the facts for what they were the gaps in the glass bricks required
maintenance and the D’s knew fine well that the maintenance was done by there
own contractor Kingsbury. The fact we found out that they did the sealing is
after protracted denying that the sealing was their responsibility as they
can’t claim sealing of ‘wear and tear’ off their building insurance as it is
excluded in the policy so they have to do it bi-annually themselves. They were
concealing the truth from us so that they did not have to repair and were aware
all along as the bricks had only been put in, in 2000. We could not trade as we
had water ingresses, which is covered in the policy so caveat lessor is neither
here nor there to us. It is not a permanent that requires some act of repair it
is maintenance to stop rainwater getting in. Had they claimed for the water
ingresses as was covered then the loss adjuster would have said they had not
mitigated their losses and they knew that. Instead they simply lied to us and
left us in a position of indifference with a repair that would cost thousands
of pounds to fix when we had just entered the premises. The reason we found out
was because after protracted investigation with Camden and Roads and Highways
we contacted the company Luxcrete to look at paying for it ourselves (after
much consideration of handing back the lease and taking an capital investment
loss to of nearing £20,000 to that date) and it was they told us it was the
defendants contractor Kingsbury.
D’s point out Caveat Lessee is correct but if I am wrong
about that there are problems in saying that the test in Guild has not been met
and C’s is entitled to damages.
Position is doubt expressed about D’s responsibility and
indeed Mr UK has denied responsibility (initially
only and then when we found it was there liability they repaired immediately so
the prior to the truth coming out denying point is now irrelevant)
Repair comparatively simple and open to C’s to have remedied
immediately and could have been followed by arguments later about who was
paying.
Paying for damage itself .. matter for the insurance and if
remedied by C with benefit of insurance at earlier stage no question of delay
would have arisen.
We did
internal repairs ourselves without benefit of insurance as we notified the
landlord and we were advised by Jaqui Greene to put damp seal on the ceiling
but it grew mould a few days later no matter how many times we tried to patch
repair and paint over it especially when people wanted to view the space or we
were marketing with very high profile businesses Dragon’s Den Peter Jones’s
company one of our first enquiry, Diesel , Camden business community with all
the new businesses influxing into the area and having marketing photo’s taken
etc. Jaqui had told us we were responsible for internal repairs such as the
wiring, fire panel, smoke detectors etc but she did not make a claim for ‘water
ingress’ a policy cover for the obvious reasons stated above. The repair to the
pavement involves 5 people a lorry of moulten substance a whole day and costs
thousands of pounds. You can’t repair internally an ongoing leak! When we
wanted to repair the pavement as was our only option in the second and third
incident by getting directly in contact with Kingsbury Construction, we were
told by the landlord categorically that we were ‘forbidden’ to contact their
contractor direct and the fact remains that no other contractor is allowed to
touch their demised pavement. It is not a simple repair as suggested! There is
further no ‘duty’ on us to repair but there is on the landlord. Why is HHJ
Cowell suggesting we relieve them of that ‘duty’? This is not law!
Paying for damage itself .. matter for the insurance and if
remedied by C with the benefit of insurance at earlier stage no question of
delay would have arisen. In short C could have mitigated loss for work
necessary not in my Judgment ‘extraordinary’.
Second leak June 2006. Attempt FWA 3rd Oct.
Useless material trodden into space (yes
on the night of a magazine launch sponsored by waitrose, useless material is
soft black mastic all over the floor taken in on the high profile guests shoes).
Carpet D replaced and remedy not done till 16th Oct 2006
(Jo
deliberately asked for the £50 door entrance carpet to be replaced by the D because
it was ruined and if they paid she thought that that in fact is an admission in
law of liability and the did pay so there it is! They never paid for the damage
to the wood floors so that is still outstanding.)
Reason for considerable delay D’s thought insurance might
pay
(yes, with a
bogus story that BT lifted the pavement in one area when the leaks were all
around the building so that was us waiting for them to try to commit a
fraudulent claim not really admisable as a reason for delay it very surprising
HHJ Cowell uses this to defend their lack of action and forseeability and
knowledge of continued damage)
Immediate cause of defect, Thames Water (How perhaps we should put all this
liableous accusations to Thames Water?)
Not fault of D.
Insuance not liable to pay because wear and tear not in the
policy, when that becomes ‘reasonably’ clear, D’s attended Oct 2006.
(D’s knew
about the ‘wear and tear’ not in the policy as in the April 2004 case as was
the same repair?)
Assuming Guild principle applies no culpable delay on part
of D, when appears insurers unlikely to pay up, work done and same mitigating
principle ought to apply.
C’s could have got Kingsbury in and argued about it later.
Third leak same mitigating principle applies relevance to
electricity cupboard leak. Not in breach of Guild principle and can’t see any
other proper way in which C’s can properly allege liability in respect of the
pavement lights.
We get
accussed of this all the time as not properly alleging!!
So here goes
again:
‘Causes of
Action’ in our particulars, which were well written within 3 weeks of Nov 2008
hearing with the help of a good friendly barrister Lesley Woods for hardly any
money at all.
(i) The
defendant have breached their expressed obligations under both lease in that
they have prevented the Claimant’s Quiet Enjoyment of the two premises
(ii) Breached
leases failed to comply with paragraph 7;
“all convenient
speed to lay out and apply in rebuilding repairing or otherwise reinstating”
(iii)
Defendant expressly obliged to effect claims on insurance policy promptly.
(iv)
Instigate repairs and remedial action promptly, risks covered by building
insurance
(vii)
Negligent in delaying repairs causing increased damage/loss of business
(viii)
Further negligent failing to effect promptly or at all claims on the insurance
causing ongoing damage/loss of business
(x) Denied
liability to maintain later admitted liability
(xi) Failed
to repair damage
(xii) Failed
to claim on insurance
(xx) Water
ingress repairs not affected, hence mould growth, active condensation
(xxi) Breach
of building regulations exacerbated
The Judge
misses out entirely the same problem occurred in May 2008 to Dec 2008, which is
when we were forcibly evicted by the then landlord One Housing Group to conceal
the now very serious evidence of the structural defect that had just been made
clear to us. There was no air in spaceshift.. at all.
Case Law
Barrett v Lounova – Business Efficacy
– correlative obligations
Cockburn –
Damage Owes Duties – Liable for damages suffered to her (only fixed in Oct 2005
alongside other material damages claims on the insurances)
Woodfall –
Maintenance – Cockburn – Damages – HHJ Cowell “not to detach from reality”
other damage was occurring at the same time and outstanding repairs were
necessary on many fronts to make the demised fit for purpose for Business
Efficacy.
Vural – Water
ingresses to the demised covered by the insurances. Knowledge, Foreseeable,
Contract, Scrutton LJ.
Dragging
their feet as pavement not covered for them but water ingresses were for us.
Caveat Lessee
cannot be pleaded as not a defect cannot be pleaded as such and further if
pleaded cannot stand up because the D’s had prior knowledge and hid it which is
the only thing that blows Caveat Lessee out of the water.
Negligence –
Cannot claim to be neighbouring occupier as retained control and pavement
proved by C’s in a statement from Camden Highways that the pavement was demised
to the D’s.
Woodfall:
Lessor retains control, mainteance necessary for the protection and safe
enjoyment. Lessor obligations to take reasonable care.
Breach of
Leases to be ‘protected from the elements’ and although HHJ Cowell says that
they must not do anything that actively removes for example shelter, lack of
what should be planned maintenance is a removal of shelter from rainwater, if
what is demised to them actively erodes without maintenance. It would be the same
as letting pipes freeze because the heating was never on. It is a ‘duty of
care’ and it is foreseeable. We also showed prior complaints of water ingresses
by the pavement area by a former tenant so it was foreseeable and they had
knowledge.
Water ingress
is insured and whether anyone was liable there were no claims made anyway so
breach of contract and duty to take reasonable care.
The use of
the word ‘notification’ is inappropriately used for September 2004 as D’s well
knew from April 2004 when ‘NOTICE’ was given who the contractor was and that
they were not insured yet responsible for the maintenance but C’s did not.
No
notification was necessary about the pavement itself except to give notice in
April 2004 that the C’s had a water ingress which was covered by the
insurances.
Not fault of
C’s if D’s not maintained and the pavement has nothing to do with them similar
to the flood at 104 upstairs however it was foreseeable that the lack of
maintenance on their land was a ‘breach of duty’ for ‘Quiet Enjoyment and a
Nuisanable action. C’s cannot mitigate an ongoing damage.
Hargrove –
HELD - Fails to maintain the gutter with notice of 2 days and causes damage to
tenant below.
Another series of problems in the electricity cupboard.
POC 42 and 43 – June 2005 – November 2005
Schedule at page 27 – Also deals with June 2006 – Jan 2008
and May - June 2008.
Reply in paragraph 11 (i) – (V) gives only hint of cause of
action, breach leases, negligence, breach of statutory duty.
Again no covenant in the lease that assists C.
Negligence is alleged but particulars were never formulated
which made it very difficult for the D’s to defend. Breach of Statutory duty is
somewhat vague, statute not indentified.
Claimants
submissions on liability which were not read by the Judge page 64 and 65
paragraphs 170, 171 and 172 identify causes of action ‘nusiance’, ‘enviromental
health hazard’, ‘danger to residents and commercial tenants as fire hazard’,
‘breach of covenant of leases for quiet enjoyment’ and ‘duty of care’.
That is somewhat typical of all allegations in respect of
many matters.
The electricity cupboard is not in demise. It is between 104
and 106/108.
Document C3/4/131-2. Thames Water refer to ‘our leak’ in
August 2005. When remedial work was done by Thames Water.
In our
submissions which the Judge did not read page 64 it was submitted that for the
whole period following on from the 1st June report D did not
reasonable care, nor make reasonable steps in remedying this defect promptly,
with the exception of the time after June 2008 when D demonstrated that it
could indded act extremely promptly and rather efficiently. The electricity
room is a communal part of the building and is under D’s responsibility and
care for maintenance. They failed to repair the defect with reasonable speed
and care page 57-64 of our submissions. HHJ Cowell above refers to ‘our leak’
quoting Thames Water ‘out of context’ at one point for they had actually dug up
the road about ten times by then with Jo chasing this to find the source of the
leak before it stopped mysteriously (probably someone went on holiday or a flat
was vacated for a time which was lucky for D since the tiring complaints
procedure we had entered into was at stage four by Jan 2006, and we were to
meet with a panel plus at one stage Jo had been in the paper complaining of the
fire risks after a visit from the fire brigade over the problem who said water
and electricity can cause a fire and that it can also cause electrecution to
those entering the area). The point being that that was in August 2005 HHJ
Cowell spoke of ‘our leak’ by Thames and the D’s had done nothing to
investigate on their side. They had not triggered an insurance claim since the
leak affected both shops with water ingresses on both sides. They simply let Jo
chase Thames Water. Did they know there were 12 water pipes in the ceiling of
their own electricity cupboard. Couldn’t they have found out/investigated if
they did not know. Jo did not assume water to be in this room in a boxed
ceiling and therefore chased Thames. The D’s only took over chasing Thames when
Jo was exhausted with it and they ‘kindly’ took over with Ed Coster and
Babatunde looking like they were doing something finally but they did no
investigation into their own side of the supply pipes. Thames suggested that it
may be a supply pipe on numerous occasions after extensive trace and remedy by
them hence perhaps saying ‘our leak’. Still the D’s did nothing. The leak came
back with avengence again to be noticed anyway due to the ingresses and smell
in May 2006 and the D’s visited again and photographed. They then claim to have
lost those photographs at court. They saw the full effects of the walls
saturated by a burst pipe in their ceiling even the floor was soaking and again
did nothing on their side to repair. Only after at one stage in June 2008 the
environmental health was visiting for reasons of safety to the residents
reasons and we let them know and viola, insurance triggered, private
contractors in and leak found in 10 minutes of them entering the room. So as is
often said by the Judge ‘its one thing knowing there is a leak its another
finding it, well in the case of CHA residential maintenance that would be over
three years v’s private contractor paid for by insurances provided 10 minutes!!!!!!!
Impossible to say D in breach of Guild duty. At no time knew
or had the ‘means of knowing’ where the leak was from.
First leak remedied by the time C wrote to Hines (the loss adjuster, funny that too was
when leak mysteriously stopped) C1/340 in January 2006. Makes clear she
and Thames Water. Ed Coster said C2/3/3 would follow up with Thames Water.
Second leak ‘investigated’ by Thames Water in Autumn 2007
C2/3/24 and C/3/20.
Thames Water had in June done other works (replacing the Victorian mains all
around London including Kings Cross) see email 1/8/06 C2/3/83 reasonably
promptly after C’s notified Ed Coster had alerted Thames Water 1.8.06 C2/2/83 (Not sure if I have to point out how
laughable that is)
Third incident May/June 2008 C2/3/5-8 Monique Jamera taking
steps to have leaks cured.
Impossible to say D ever in breach of Guild duty in respect
of these unfortunate leaks which Thames Water itself had some difficulty in
stopping. (They did not stop the
leak D did when it was discovered it was their own pipe).
Causes of
Action
(i) The
defendant have breached their expressed obligations under both lease in that
they have prevented the Claimant’s Quiet Enjoyment of the two premises
(ii) Breached
leases failed to comply with paragraph 7;
“all convenient
speed to lay out and apply in rebuilding repairing or otherwise reinstating”
(iii)
Defendant expressly obliged to effect claims on insurance policy promptly.
(iv)
Instigate repairs and remedial action promptly, risks covered by building
insurance
(vii)
Negligent in delaying repairs causing increased damage/loss of business
(viii)
Further negligent failing to effect promptly or at all claims on the insurance
causing ongoing damage/loss of business
(xi) Failed to repair damage
(xii) Failed
to claim on insurance
Case Law
Sedleigh –
Denfield - ‘Nuisance’ caused by state of things on neighbouring land,
knowledge, fails, ‘breach of duty’
Breached
Leases Clause 7 Duke of Westminster v Guild “duty of Care” ref: Hargrove
Aronson v Hartopp + Cockburn v Smith.
Woodfall 28th
Edition 1-1469 page 621 Lessor retains control, maintenance necessary for the
protection, safe enjoyment, lessor obligations to take ‘reasonable care’
Cockburn –
Liable for damages suffered to her.
Scrutton LJ
Modified – preferred not to say whether ‘duty’ arose out of ‘contract’ or duty
to take ‘reasonable care’
Guild for
short.
Barrett v
Lounova – Business Efficacy – Corralative Obligations
Vural – Lessor owes duties lease implies
contract with insurance
Clerk and
Linsell – Escape of Water – ‘Reasonable time after notice’
Fact was;
Leak on premises, so if same applies as in cracked stack pipe on the premises
whether Thames were involved was irrelevant, like what was Judged earlier that
the neighbouring flats in the end were not relevant then it took in total after
notice a total of 3 years to be fixed. Fixed by insurance paid for contractors
as it should have been in the first instance.
Another series of problems feature:
POC 33-41 – Fire panel, wiring, smoke detectors, emergency
lighting.
POC 46 – No Ventilation in 106.
Other matters –
Security shutters,
Flooring,
Fire exit.
Para 30 Schedule 31-32.
In respect of no ventilation said air bricks, POC and
Schedule page 33.
There are photos of the fire escape and lighting G1/121-2.
D’s did improve the fire exit, re-arrange the door in about
July @007 to open outwards rather than inward.
Complaint is arrangment did not meet fire regulations. D’s
short answer Caveat Lessee.
That must be correct.
No warranty or covenant given that the premises comply with
regulations.
Nor any ‘breach of regulations’ give C’s ‘Cause of Action’
against D.
Accept paragraph 65 – 67 D’s closing submissions.
Similarly have to give the same answer in respect of want of
ventilation/absence of airbricks.
No warranty given that property would otherwise than that,
another case of Caveat Lessee.
Accept D’s submissions paragraph 68-9.
Case Law
Barrett v
Lounova – Business efficacy – correlative obligations
Jackson v
Watson – Defect faulty construction
Guild –
Woodfall – Lessor retains control maintenance necessary for protection and safe
enjoyment. Lessor obligations reasonable care – foreseeable – Hargrove –
‘notice’ given
Ventilation:
Building regulations part F
Jackson v
Watson – Defect faulty construction
Barrett v
Lounova – Business efficacy – correlative obligations
Vural –
Lessor owes duties – lease implies – contract with insurers HAPM + Fraud also
theft covered by the insurance.
Security
Shutters: Theft – Vural insured – All public money – application for 106 lease
asks for the same ‘standards’ as 104 – this includes floor too - Insured.
Fire Exit –
Barrett v Lounova – Business efficacy – Lease obligations. Fire regulations –
Statutory duties.
Caveat Lessee
cannot stand up if prior knowledge and withheld
Broader question of insurance. During periods parties sent
submissions C’s sent letter 25th July (actually
an email was requested in 2010 after trial ended and asked for because the case
of the ‘Claimants’ was not heard at all due to running out of time after 10
days so D’s only presented their case in this trial. The unheard case of the
insurance satalite dispute and the voided insurance because of the landlord was
therefore never heard except in the email the Judge now refers to) which
refer to series documents which demonstrate difficulties C’s had been getting
from the insurers after 20th Jan 2006.
Need only to mention very few documents.
Mr Hines who came on the scene 25.07.06 C4/292 … (missing
notes) By Oct 2006 C’s (reclaiming)
claiming £280,450 C4/217 from D for breach of ‘the usual landlords covenants’
and £164,000 odd from insures for water damage (cessor
of rent and business interruption).
Letter 8th Aug 2006 dealing with those claims
concluded as insurers unable to assist.
Described as final decision letter of those insurers. C4/208
C’s claiming £400,000.
After much hassle about documents received by Graham Ward (Royal and Sun Alliance loss adjuster)
and whether passed to … (notes missing) insurers took the view C’s not provided
sufficient information.
Information of the kind 28.11.07 clarification and Harris (Alan Harris of ‘Harris Claims’
notoriously well know loss adjuster to the stars and famous brands in business employed
by C’s) request for insurers to accept liability insurers insisted on
proper presentation (well if
anyone could present well Alan Harris could he said they just don’t want to pay
and are leaving us in a position of indifference to see how deep our pockets
are in a court trial where they will just pay fees of the legal people to rid
themselves of the claim) C4/143, C4/133.
Ultimate point, that has nothing to do with D. (it was there second and back up excess liability insurer so
it does because they breached the terms of the first insurers).
Far from standing between C and the Insurers D enabled C’s
to correspond (how?) with
insurers and refusal by insurers even if wrongful, which I doubt, gives C’s no
cause of action against D.
The use of
the usual landlords covenants is derogatory to the claimants and even though
HHJ Cowell was well aware he never figuratively explains our vast financial
losses including a house that had been bought outright which had to be
mortgaged and then sold to pay for now cripplingly higher loans outstanding
just to pay the rent and not lose everything invested in.
D’s breached
terms that is why unable to assist.
Case Law
Breach of
clause 7 on leases contract or duty or both.
Unfair trial
under the human rights act asked to put our case in an email and HHJ Cowell
made legal history when he admitted after Jo proved it he had not read our case
at all because he admitted not reading after never hearing in court either our
submissions on liability of 92 pages and 245 paragraphs.
Vural – The
D’s dragged their feet D’s did not provide information to the insurers loss
adjuster for which information was vital to advance the claims.
Claimants put
to presenting a claim for court instead without knowing about the insurance
having been voided for some years. So living in false hope and financial
planning for years that we would eventually albeit that it had taken a long
time simply be reimbursed on the insurances for losses simply covered by our
buildings insurance policy under the property owners liability section POL for
which the loss adjuster Hines had reported we had qualified for and put a
figure of £30,000 and so did Royal and Sun Alliance put a figure of £100,000.
The landlords
cannot be said to have ‘not stood in the way’ when they triggered the ‘legal
defence policy of defending a claim’
After
statutory harassment, trespass and improper inducement to drop the ‘liability’
claim.
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