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 13th
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 19th 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 2nd April on the N244 application notice (the N244 has
already been filed on the 21st March 2013 but the Deputy Master of
the Civil Appeals wrote back on the 26th March 13’ (received on 27th)
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 2nd 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 10th
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 15th 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
18th March, 20th March and the 26th 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 1st May and 2nd 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 24th 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 1st, 2nd 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 19th 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]
12
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]
13
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.
14
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]
15
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 4th 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 22nd
Sept 2010 Judgment.77
I
mentioned in my Judgment of 9th 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 22nd 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 1st/2nd
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 22nd 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.
31stth 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
31st March
2013.
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