Skeleton Argument II

Claim No: CHY09015

IN THE CENTRAL LONDON COUNTY COURT & NOW IN THE COURT OR APPEAL REF B5/2010/2396

BETWEEN:

MS JO Flores (Nee: GAVIN) (1)

MS CHANTAL CRACY (2)

Claimants

and

COMMUNITY HOUSING ASSOCIATION LIMITED

Defendant

SKELETON II ARGUMENT ON BEHALF OF THE CLAIMANTS

FOR Permission To appeal ON Dec 2011

1.              This case fundamentally can be resolved with three documents. The 1^st claimant took on a lease at 104 Cromer Street, London, WC1H 9PB for the HQ of Youth Parliament in 2000. She immediately suffered business interruption and put the defendant’s on national TV to resolve the issues. She was awarded a year’s free rent. In 2004 the 1^st and 2^nd Claimant took on the lease of 106-108 Cromer Street to expand the Youth Parliament. They suffered business interruption throughout the duration of the lease period because essentially the building broke all national building regulations in that it breached part f because the building was not fitted with airbricks. The landlord was aware of the building errors at the time they leased the building and passed the building off as A3 planning. The three document’s referred to are the initial request letter for the lease of 106 Cromer Street asking for ‘standards’ to be maintained. The second  document is a letter from the claimant’s to the Commercial Manager Christopher Natt of CHA when they first noticed their was no air in the building in 2005 and gave ‘notice’ that a claim should be made to the building insurers for ‘theft’ since CHA had given money to the previous owners to install ventilation and knew that they had not done so. The third document is a letter from Woolf Simmonds solicitors on behalf of the defendant threatening to sue their insurers if they did not pay the claimants on the building disrepair issues and the business interruption claims as even though the liability was the landlords they believed that they should be covered even if they had done wrong which is why they took out liability insurance to cover such events where they were at fault.

Hargroves, Aronson & Co -v- Hartopp [1905] 1 KB 472

1905
CA
Lord Alverstone Nuisance, Landlord and Tenant Casemap
1 Citers
The tenants of a building of which the defendants were landlords sought damages after a rainwater gutter became stopped up and the defendants failed to clear it out for a few days after receiving notice of the stoppage. Held: The landlords were in breach of a duty of care to the plaintiffs and were liable for the damage done. If a building owner retains common parts which have to be maintained to protect the safe use of the demised properties, he has an obligation to take reasonable care that the parts he retains are not in such a condition as to cause damage to the tenant or to the premises demised.
Lord Alverstone said: "A person who maintains an artificial thing like a gutter used for the very purpose of carrying off the rainwater from the roof in an improper condition after notice may be said, in my opinion to be guilty of an act of commission, and he is, in my opinion, under a duty to take care that as a result of that act no damage happens to the occupants of the house."

File Volume D1/152a/152b held at the Central London County Court in the Case of Gavin & Cracy vs Community Housing Association. Case Number CHY09015.

Trial Dates: 13 days in July-Sept 2010.

Jaqui Greene Community Housing Association’s Commercial Manager and independent business woman at ‘Block Management’ internal email sent to CHA management on the 15th August 2005.

'It is CHA's responsibility to ensure the commercial units are free of damage. Undue care to carry out this responsibility may result in the tenants of commercial units placing CHA on ‘notice’ which would then have to be ‘notified’ to CHA’s own indemnity insurance as the tenant has the right to claim for damages, loss of business and loss of income as well as anything else they can throw at CHA. If a commercial unit suffers damage and loss they have the right to ‘withhold their rent’.

2. The Claimant’s are appealing the Judgment given by His Honour Justice Peter Cowell given on the 9^th Sept 2010 at the Central London County Court and a second Judgment given on 22^nd Sept 2010 on the same day as the costs hearing because HHJ Cowell admitted he had made a Judicial error and not read the ‘Submission On Liability On Behalf Of The Claimants’ a crucial document of 92 pages, 245 paragraphs and referring to over 300 further documents as evidence, which are the claimants legal arguments. HHJ Cowell said he had only read the Defendant’s legal arguments before Judgment because he thought that the claimants had sent him by email instead of their own legal argument a copy of the defendant’s legal argument because his honour said they looked so similar. This made the final Judgment on the 9^th Sept a one sided argument the Judgment therefore breaching the human right’s act.

Article 6 of the Human Right’s Act 1998 (1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

3. More frequently cited in court than any other landlord and tenant source, the law of ‘Woodfall’ under the Landlord & Tenants Act was used to evict the claimants after the second Judgment despite their being no outstanding rent payments so ‘Woodfall’ could not apply. It was cited by his honour then that the claimant’s should have made an application for forfeiture which seemed to miss the point that the application for forfeiture could only be made after the issues of disrepair had been ironed out by the courts and the decision as to whether the landlord had either trespassed or forfeited was yet to be Judged. The two injunction’s on the shops were evidence this was not a simple peaceable re-entry for non-payment of rent by the landlord but an act of aggression for which the claimants had already brought to the attention of the court hence this case. The injunctions therefore to protect our position and businesses should have remained or at the very least it was for HHJ Cowell to ask the defendant to apply for the injunction order to be varied in the light of HHJ Cowell’s Judgment but that this should not have been dealt with on the day of costs and with no preparation from the claimants to be in anyway capable of even understanding the complex law of Woodfall at a second’s notice. That being said the shops still remain empty and we believe that the injunction for quiet enjoyment should be upheld pending the outcome of the trial to prevent further theft of our refurbishment by the landlord not only stealing our shops but it would seem they in the face of no takers for this smelly shop are resorting to stealing our ideas too and have advertised as a business centre on short or long term lets. Perhaps having noticed our public website stating they were advertising A3 by deceit again (which we hold evidence of) they have at least changed the planning to A1 on the to let sign on the 30^th Nov 2011 but that again is actually incorrect as without Part F ventilation the place is still completely illegal to trade from. We would further suggest that when we are given the keys back and re-instated that our UKU building insurers put in the ventilation as they held policy cover when notified and it was a pity that when being given Quiet Enjoyment when we successfully held the injunctions it was not ordered more specifically that the shops were to be repaired with immediate effect so as business could commence.

4. The law of Guild v’s the Duke of Westminster was cited throughout as the landlord’s defence. They pleaded they should be treated as a neighbouring occupier. This was largely to do with ‘everyday use’ and ‘accidents’ but does not bring into the equation that they were in a contractual obligation with the claimants to insure the building therefore they were hardly seen as a neighbour.

Another law used was that of Southwark and Mills where again the ‘common use’ agenda is being used and more worryingly in this famous case of a public landlord the issues of costs implications are being used when clearly in our case any costs would simply be borne by the insurance cover on liability of 2 million. If things were put right as they should be this public landlord would not pay 1p.

5. Let’s just pin down the issues in this case here and the laws that are being used to take from the claimants their equity and to further put them in financial debt to take away their businesses and in effect to rob them of their personal homes. These are it has to be said huge burdens on two individuals that the courts cannot take lightly in the Judgments made starting because of a few leaks.

6. Twelve issues in short hand summary for ease of reference are; a) Leaking pavement, 106, 6 months. b) Soil stack pipe crack, 104, 4 months. c) Soil Stack pipe crack 6 months. d) Toilet Flooding Entire Gallery, 104, 4 months. e) Moulding flooded floor, 104, 33 months. f) Electrics, Room, cracked pipe 5 months. g) Electrics, Room, cracked pipe 16 months. h) Electrics, Room, cracked pipe 1 month. i) Leaking pavement 19 months. j) Leaking Pavement, 106, 4 months. k) No fire exits, 104 & 106, 84 months. l) No air, 106, 54 months.

The issues will be seen in a simple table form attached; Appendix 1 Water Ingresses, Appendix 2 Fire Escape, Appendix 3 Airbricks this is to be helpful to the Court of Appeal.

Appendix 1.

a.) First issue of major water ingresses ‘an insured risk’ was at 106 Cromer Street in April 2004. This was resolved in 3 stages. 1^st stage, the leak was stopped on 1^st November 2004, 2^nd stage in the absence of the landlord fixing the damage it was repaired by builders paid for by the claimants on 14^th and 15^th Oct 2005, 3^rd stage the insurers refunded the claimants on the 20^th January 2006.

b.) Second issue of major water ingresses ‘an insured risk’ was at 104 Cromer Street on the 14^th Sept 2004. This was repaired in four stages over four days on the 2^nd, 3^rd, 4^th and 5^th of January 2005.

c.) Third issue of major water ingresses ‘an insured risk’ was at 106 Cromer Street on the 7^th February 2005. This was resolved in four stages, 1^st stage 27^th April 2005 the leak was stopped, 2^nd stage 2^nd June 2005 incomplete repair with two walls left open, 3^rd stage in the absence of the landlord fixing the damage it was repaired by builders paid for by the claimants on 14^th and 15^th Oct 2005, 4^th stage the insurers refunded the claimants on the 20^th January 2006.

d.) Fourth issue of major water ingresses ‘an insured risk’ was at 104 Cromer Street on 24^th June 2005. This was resolved in five stages , 1^st stage 25^th & 26th June 2005 the claimants took immediate action over two days to bring the gallery back to redecorated state, 2^nd stage 29^th June 2005 the defendants surveyor checked the damage, 3^rd stage 23rd August 2005 insurance claims form sent to the claimant, 4^th stage in the absence of the landlord fixing the damage it was repaired by builders paid for by the claimants on the 13^th – 25^th Oct 2005 with a loss adjuster from the insurance appearing on the 14^th Oct to assess the damage, 5^th stage the insurers refunded the claimants on the 20^th January 2006.

e.) Fifth issue of major consequential material damage from the 24^th June 2005 water ingresses, ‘an insured risk’ was at 104 Cromer Street in early 2006. This was never resolved but for the purposes of this chronology, at the 1^st stage it was attended to by the claimants throughout with patch repairs until Dec 2007, the 2^nd stage in the absence of action from the landlord the damaged area was removed completely in late Dec- New Year by the claimants and two quotes were presented to the landlord for repair on Jan 3^rd and 4th 2008, 3^rd stage in June 2008 the landlord improperly induced the claimants to pay £5,000 for the repair or they would double the rent for the next five years, 4^th stage in July 2008 the claimants asked for the ‘cessor of rent’ clause on the insurance to be triggered which was ignored, 5^th stage the landlord issued a section 25 notice in Aug 2008 for the rent to double at 104 Cromer Street, 6^th stage rent demands were forced upon the claimants or they would be evicted yet they could not trade the claimants employed a local solicitor to deal with the section 25 notice and issues of disrepair and the outstanding ‘liability’ for interruption to business as well as excessive delays with the insurers not paying out, 7^th stage ‘One Housing Group’ took over management of both shops from CHA and changed the due rent dates to the same date of payment, 8^th stage despite being forced to pay £6,000 in rent or we would be evicted with bailiff action for two shops that were unusable and our solicitors telling the landlord that they had already been unduly enriched by over £30,000 in rent when the ‘cessor of rent’ clause had not been triggered as well as stating that they held over £30,000 of the claimant’s money on trust pending the insurance claims regarding payment of rent the landlord now ‘One Housing Group’ 3 weeks after taking over management purported to have not received the rent cheques we sent and broke into both shops in Oct 2008, 9^th stage the claimants re-entered after they showed by personal delivery receipt of now on-line ‘proof of payment’ of £6,000 of rent to the finance office of OHG HQ, 10^th stage the landlord’s ignored proof of payment and 4 days later broke back into both shops, 11^th stage Nov 2008 the claimants showed proof of payment at the Queen’s Bench at the High Court and were forthwith granted two injunctions and re-entered the premises the next day once the landlord were presented with the injunctions and had to hand back the now new keys as the locks were broken each time they entered and the fire exits nailed down, 12^th stage both parties (the claimants to the insurance case yet the defendants to the trespass but still for some reason called the claimants although they were ‘defending’ an aggressive action of unlawful trespass and the stealing of both their fully refurbished businesses), appeared in court the leaseholders in person and the defendant’s appeared in the High Court with a QC in Nov 2008, 3 weeks after the injunctions were granted, to present argument in the case of trespass or as the landlord put it forfeiture. The 2^nd claimant although she had no part to the case or any action to re-enter was added to the case without her consent because the QC assumed she had money as was Youth Parliament’s social investor but had already lost her house to pay for interest on loans that were spiralling out of control because we had not been refunded on the ‘liability’ case of massive business interruption and to continue paying for shops we could not use until that matter was resolved and the name of the trespasser ‘One Housing Group’ was changed to their previous name, which no longer existed ‘Community Housing Association’ to save the new landlords reputation. The Judge ordered that the injunctions remain after argument from Ms Jo Flores and proof of payment. The judge further ordered that Quiet Enjoyment be given to the leaseholders and that the case of disrepair and liability for business interruption as well as whether the ‘cessor of rent’ clause should have been triggered be put to the county court before the issue of unlawful trespass or forfeiture could be assessed. The Judge asked that the matters be dealt with at speed and that ‘particulars of claim’ be presented in 3 weeks by the leaseholders. 13^th stage the solicitors for the landlord needed more time to put together their defence and counter claim and wrote to the leaseholders asking for more time. The leaseholders said they would certainly give more time but that the Quiet Enjoyment order was to be observed and a claim for the repairs at both shops needed to be put back to the insurers so that the leaseholders could trade. This was ignored throughout the run up to the trial and despite asking for the bills for the current building insurance cover they were never presented to the leaseholders. The Judge had ordered that the rent was not to be paid by the leaseholders while they were proceeding through the county court’s as the leaseholders believed the landlord had over £30,000 in rent belonging to them. The case took two years to get to trial and both shops were left still without repair, which were insured risks. Both the landlords and the leaseholders surveyors stated that the current repairs of thousands of pounds were insured risks. The repairs remain outstanding but can be simply claimed for on the buildings insurance when the case is finished and the leaseholders are ‘re-instated’, which is also another ‘insured risk’ fully covered as is ‘trespass’ on the current Zurich insurance cover a cover as stated above we have suspiciously not been allowed to access.

f.) Sixth issue of major water ingresses ‘an insured risk’ was in the electricity room for the entire building located directly wall to wall between both 104 and 106 shops on the lower ground floor level and below a residential block of apartments, in June 2005. The strength of the leak subsided in Nov 2005.

g.) Seventh issue of major water ingress ‘an insured risk’ was in the electricity room for the entire building located directly wall to wall between both 104 and 106 shops on the lower ground floor level and below a residential block of apartments from June 2006 to January 2008, when the leak suddenly stopped.

h.) Eighth issue of major water ingress ‘an insured risk’ was in the electricity room for the entire building located directly wall to wall between both 104 and 106 shops on the lower ground floor level and below a residential block of apartments from May 2008 to June 2008. The leak was finally stopped and internal pipe work fixed on 23^rd June 2008. The water damaged fireboard casing was never replaced leaving 10 water pipes in the same room as high voltage electrical meters and cables. No ventilation in this room meant it is was a fire risk as pointed out by the environmental health and the fire brigade and the courts heard from the defendants QC that they entire block does not hold a legally required fire certificate nor have the CHA had a fire certificate since the publically funded refurbishment in 1999, which means the building has not been inspected. This voids the entire building insurance policy as an act of omission. However policy cover would be established by Royal & Sun Alliance as an extra liability insurer the landlord holds 2 million pounds cover with for ‘liability’ in the event of fire damage or accidental death.

i.) Ninth issue of major water ingress ‘an insured risk’ was at 106 Cromer Street in June 2006. The was repaired in three stages, 1^st stage on the 4^th Oct 2006 an ineffective repair was carried out which caused more material damage 2^nd stage on the 16^th Oct 2006 finally the water ingress was stopped. The damage to the internal parts of the building was fixed on the 10^th August 2007.

j.) Tenth issue of major water ingress ‘an insured risk’ was at 106 Cromer Street at the beginning of June 2008 this repair was never fixed.

Appendix 2.

k.) Eleventh issue of major disrepair were the fire exits a means of safe escape ‘an insured risk’ were defective from December 2004 to Sept 2007 for 106 Cromer Street and May 2000 to Sept 2007 for 104 Cromer Street.

Appendix 3.

l.) Twelfth issue of major disrepair no ventilation a structural defect, ‘an insured risk’ was at 106 Cromer Street from April 2004, to date this has not been fixed.

7. The above 12 issues have been defended with landlords and tenants law. However all the above was not refuted in court save for a couple of days in giving ‘notice’ which was argued like splitting hairs when it had nothing to do with the facts undisputed and the simple fact that every issue was an insured risk. Judge Cowell neither argued nor gave Judgment on the untimely conduct of the landlord. This was one of the most important issues to address and yet we see nothing in the Judgment that makes reference to the twelve issues and the fact that they were insured and should have been Judged individually to establish ‘liability’ with the landlords insurer who would then have to pay the landlord to refund us.

8. Although we do not have the transcripts of the Judgment of the 9^th Sept 2010 below are the notes taken by the claimants:

HHJ Cowell: The defendant sought to forfeit entrance by peaceable re-entry on 29^th Oct 2008.

13. Jo Flores Comments: There is no explanation as to why and on what grounds. However it is noted that the correct term ‘sought to forfeit’ is used, since the claimants have always contented this was illegal, no legal forfeiture occurred hence they contend (although being often pushed to do so) there is no need to apply for relief. Instead the claimants went to the High Court and obtained two injunctions to re-enter with a proviso for quiet enjoyment in that the landlord was to fix the issues (through making insurance claims) that were currently rendering the Claimants incapable of trading and subject to all the issues of disrepair to be dealt with regard to liability at trial.

The (as this was not stated) landlord entered on the ground of non-payment of rent which the claimants believed not only was not owed and had anyway to the date of entry and beyond that been paid (disputed by the landlord as they say they lost the cheque paid by the claimants so then the claimants paid on-line and delivered ‘evidence’ of payment to avoid the second break and entry, which still took place) so constituted trespass and unlawful breaking and entering twice not withstanding that the ‘cessor of rent clause’ (6iii) should have been in operation as stated by the claimants solicitors (shown to the courts) before both break ins. Further that there where in the past countless issues of disrepair that had delayed payment of rent (so lease clause for non-payment could not be invoked) on many occasions until the issues were resolved, (Guild) so there were historic examples of  how the said current dispute in Oct 2008 and subsequent issue of a ‘section 25 notice’ and ‘threat’ to double the rent constituted ‘harassment’ added with breaking and entering were ‘over zealous’ and actions open to legal argument as to the ‘history’. Further that the claimants believe they were ‘actions’ to ‘conceal the evidence’ and the ‘breaching of Part F building regulations’ and or further evidence of disrepair.

It was stated at the hearing of 14^th Nov 2008 by Justice Clarke that the claimants had ‘always’ paid the rent as a gesture of goodwill despite the claim by the Claimants that the landlord was holding £31,292 (the Claimants claimed was owed to the Claimants due to the ‘cessor of rent’ clause 6iii in the leases when they building was not in use) representing part of £59,500 paid by the Claimants in ‘trust’ (until ‘liability’ was established and partly because of ‘fear’ of any lawfully actionable eviction as happened ‘dubiously the moment the landlord gave themselves the chance on ‘dodgy’ grounds) until outstanding issues of repair had been resolved with the landlords being as it were that they were ‘indemnified by their insured’ so they should make a claim under the clause with which they were covenanted to do so in terms of the lease for repairing obligations to the building insurers and all liable  actions/inaction compensated under clause 7(ii).

14. HHJ Cowell: There was a court ex party hearing on 4^th Nov before Justice Clarke and on the 14^th Nov 2008, for the claimants to ‘remain’ and further the claimants should ‘specify the nature of claims’, which as such amounted to a ‘counter claim’, which would indicate ‘no rent’.

15. JF Comments: No mention of two high court injunctions and that it was at the claimant’s request that the full case of ‘disrepair’ on numerous issues be brought to the Central London County Court. Plus the way this has been said about indicating no rent is an error in the procedural way it is described.

16. HHJ Cowell: On 4^th Nov 2008 part of the claimant’s particulars seemed very difficult to obtain what the causes of action were.

17. No mention of an order by HHJ Cowell suggesting that the causes of action were better particularised because of a complaint by the defendants that this be done (the claimants had enlisted the help of a lawyer friend Ms Woods to date a specialist in immigration only, to help particularise their complaints to save cost and format properly as they could not afford lawyers so would fall foul in some administrative way to perhaps harshly be unable to proceed, with the case being highly likely to be thrown out on these administrative grounds at an early stage). It was then and only then that the claimants (already put to undue expense with the break in leading them to the courts) were forced to pay for ‘specialist’ landlords and tenants counsels assistance to ‘satisfy’ the courts.

In a judgment that HHJ Cowell himself described as ‘surreal’ the better and professionally clearer particulars were ‘not accepted’ and they were ‘dismissed’. The claimants at times do plead for example in the new particulars, derogation from grant, harassment contrary to section 1 of the protection from harassment act 1997, by virtue of section 3 of the said act entitling the Claimants to civil remedy in respect of the harassment including damages, as well as various other relevant causes of action quiet enjoyment (which was allowed but too was in the originals), nuisance, expressed terms in the leases. They also state a breach of the ‘cessor of rent’ clause 6(iii) with the single joint expert having further ‘assessed’ by that point, the amount as £45,365.00 owed back to the Claimants by the landlord if liability was established. Further and/or in the alternative, by virtue of sub-clause 5(12)(c) of the leases, there is an implied term that the Defendant had a ‘duty’ to examine decorate repair and rebuild the structure of the demised premises. Further, pursuant to section 4 of the Defective Premises Act 1972, such implied term places the landlord under an obligation to the tenant for that description of maintenance or repair of the premises. Further in breach of the said expressed term for quiet enjoyment and/or the said implied term the Defendant failed to keep safe the fire escape areas.

Finally the Claimants asked for an order that the Defendants take all steps to prevent further water penetration, to remedy the damage that remains to be repaired. For the defendants to install an adequate number of airbricks to ventilate (as planning cannot be obtained by the tenant) and to remedy such damage as remains to repair.

The claimants did all the above at a total cost of £22,000 for counsel. This has been overlooked by HHJ Cowell in his honours final judgment of the 9^th Sept 2010 and suspiciously no real reference was made to this within the bundles made up by the Defendants solicitors for which only one copy was given to the Claimants on the day before trial with no time to assess any missing data of which there was a substainsial amount within the 19 bundles and no time to familiarise themselves with the rearranged order which had been changed from the original bundles in which so much had also been duplicated unnecessarily and as the judge became aware vital  parts were missing too, including very suspiciously email evidence that the landlord has threatened to sue their insured and their insured threatened them to back down. Noted too was that all this was at considerable expense with several copies in the court to the many unknown people who were in there watching on the defendants side of the court. HHJ Cowell stated at the time 25th March 2010 that the more professionally particularised causes of action put together by specialist lawyer Vikram Sachdiva of 39 Essex were not in his view the ‘relevant ones’ (causes) anyway and so it was that our newer and very costly amended particulars were very early on in the case thrown out which is again the subject of why we feel we did not have a fail trial and were nearly very well costed out or thrown out if we did not act on advice by the courts.

Judge Cowell said by way of justification at the time that he ‘now understood the case better and that all leaks were outside of the building and out of our control’. His honour ruled to keep the ‘original’ particulars as he ‘now understood’ the claimants original particulars, which are now again the subject of strong criticism. One could say, ‘you can’t have it both ways’ with justification as to say there are ‘no causes of action’ correctly particularised with this background properly stated leaves a lot to de desired in terms of fairness. This too gives rise to the fact that the issues are arguably ‘not dealt with’. The previous causes of action need to be analysed by the court of appeal to check whether this first Judgment was either ‘harsh’ and/or whether we have been ‘mislead’ and that our original particulars of claim should not back then have been allowed to proceed wasting our time and money to proceed with particulars that would later be ruled as not good enough. We feel we assisted the court and the other side, which took a lot of time and money and were dismayed since this was done by us on the judge’s advice/order that this issue was again brought up. There is something fortunately in law that does not penalise applicants on the grounds of how things are said or presented these days as used to be the case in the old days. They got rid of that. So using this ‘particulars not formulated properly’ but saying one ‘understands’ now is rather odd and maybe illegal to judge against us these days. We were also ordered to pay the other sides costs regardless of the outcome for wasting their time. This exercise amounted to an estimated further cost to us the Claimant of about £42,000 in total (borrowed money as we had lost far too much to get stopped in getting justice now) in being helpful to the courts, when in the end the courts preferred the original particulars which only cost us a few hundred pounds, yet would use them effectively against us in this judgement.

HHJ Cowell did however allow our ‘schedules’ in the amended particulars of claim, which are a coherent table of all the incidences, dates reported, dates repaired, description of damage and date resolved by the defendant. This Judge Cowell stated was ‘very helpful’ and it was also much closer to what HHJ Clarke had ordered on the 14^th Nov 2008 too, rather than a list of ‘events’ as HHJ Cowell put it more like an inquiry which did not serve the courts or make his honours job easier his honour said. The Claimants still now and back then too felt it was important to state the sequence of ‘events’ that lead to the ‘harassment’ and ‘unlawful eviction’ to save a claim and potentially cause exposure for the large scale, well known and politically and judicially connected (Their chairperson’s brother is the Master of the Roles) social landlord One Housing Group and all those associated with this claim behind the scenes.

A recent judgement although not necessarily relevant but could be potentially to the Claimant (as may explain such a costly and rigorous defence) said: that these social landlords were indeed ‘to be viewed as public bodies’ and therefore open to ‘Judicial Review’ due to their influential political connections. This case may well as is likely have had larger consequences for the (One Housing Groups probably why they took the name out of the hearing preferring to use CHA the old name) landlords funding which could be legally ‘suspended’ if found guilty as well as their public reputation in tatters letting excrement be allowed for nearly three months to run down our walls in the most beautifully refurbished space and as the Mayor of Camden ‘our witness’ put it ‘how does this give confidence to the treatment of the residential tenants’ which was giving the Mayor as well as the head of the residents association our other ‘witness’ grave concerns’. The Claimants say this because there are legalities involved too.

It must also be noted that in 2003 Prime Minister Gordon Brown made significant changes in the status and role of RSL’s Residential Social Landlords in that they would be the ‘preferred providers’ as opposed to the ‘local authority’ to get housing Government funding to build new housing stock further de-centralising local Government and worth billions to the RSL’s in terms of public and private finances and although we are not any part of the landlords social do good-ing we may well have inadvertently as a commercial tenant exposed their failures which would not bear well for the political agenda of the day. It is very sad for the Claimants to have very well, potentially fallen foul of such a powerful dynamic. In which case we may need to go to Europe to get justice as there can be little trust with this politics/and or greed (insurance ‘commercial decision’) in this country.

There was one more counsel involved Mr Marc Beaumont who charged £10,000 and was double booked and ill prepared on the day he appeared for us (and also he later claimed to be best friend with the other sides QC’s husband and told us to back down as it wasn’t ‘winnings on the lottery’ and well known of Judge Cowell). We asked that a cause of action be ‘Fraud’ which was suggested to HHJ Cowell who said it was ‘fraught with difficulties’ so again ‘deceit’ as in ‘fraud’ that was left out.

Finally three extra amendments were also allowed they are:

The Claimants’ business plan was:

(a)   to use 104 as an art gallery

(b)  to use 106 as a multifunctional space available for hire

(c)   to establish an independent Youth Parliament economy

(d)  to develop a business model with Spaceshift which could be franchised by young people throughout the UK

3(A) There were express terms of both leases that the Claimants should have quiet enjoyment of the 104 and 106 as against the landlord and all persons claiming title through the landlord.

3(B) The Claimants at all material times operated the businesses of an art gallery (“Scarlet Maguire”) and multifunctional space available for hire (“Spaceshift”) from 104 and 106.

18. HHJ Cowell: A broad outline:

Insurers to pay; -

April 2004 Glass Bricks Pavement let water through. Best to understand this look at G1.71 in fact shows repairs with gap at the edge of the paving, which let water in.

19. We disagreed as in our ‘schedules’ it is in fact stated that ‘wear and tear’ of the asphalt sealant on the pavement was NOT insured as stated by us in the trial and is proven in the insurance documents. The wording ‘edge’ of the pavement by HHJ Cowell is ‘misleading’ and fits the landlord’s defence in that the defendants made an (bogus) insurance claim that BT lifted the pavement in order to cover this as an insurance job on the first occasion it leaked (April 2004 claim made in Nov 2004) and could not get cover on any other further occasion it leaked as the landlord was not indemnified for gradual ‘wear and tear’ of a public pavement. We believe the defendant lied about this to get the repair covered by the insurers after seven months delay when they accepted no liability and where they claimed and maintained even throughout the hearing that they did not own this pavement. It was proved by the claimant and ruled as such in this judgement that they did in fact own the pavement and they did not demise it to the claimants.

It can been seen and needs to be stated that the broken sealant was across the pavement and not just around the edges as can be seen clearly in the said exhibit.

20. HHJ Cowell: Sept 2004. Repairs to ‘gaps’ were done by Kingsbury Company, which originally inserted the glass bricks and dealt with.

21. JF Comments: There is no mention of the claimants assertion throughout trial and is as seen in number 7 Of their particulars that it was only after much denial from the defendants and protracted efforts by the claimants to find out who was responsible and therefore liable for fixing the pavement in what amounts to a ‘very expensive’ repair (they couldn’t afford) which was not on the claimants premises but affecting them severely that it was the claimants (and never the landlord) who tried to mitigate their loss and to attempt to find out how to get the repair done at the cost of being forced in mortgaging one of the Claimants houses rather than go out of business owing £30,000 in small loans with growing interest as setting up capital expenditure. The claimants as seen in Jo Gavin’s (Flores) witness statement got a quote from ‘Luxcrete’ the name on the glass brick area of the pavement of £20,000. Despite this extortionate quote the claimants had already put too much money into the refurbishment as well as bills, rent and business rates so they made a decision (with the advice of professional friends in the Dept of Health and City Lit who thought the place was a goldmine and we should not lose our capital at this early stage) it would be better to pay and argue about it later for the sake of their business. This is again similar to the claimant’s attitude when paying £3,500 for the flooded ceiling to be replaced. It was stated throughout the case that when ‘Luxcrete’ (not Kingsbury as stated) then told Ms Gavin that they personally did not do the sealing of the asphalt they had just laid the structural part (sealing is a job involving a large lorry of burning asphalt and five professional builders) but would find for us the claimants the company who did the original job as they would be specialised and more local, it was only then that the name Kingsbury Construction was given to the claimants by Luxcrete, the claimants realised immediately was the defendants contractor who had converted the entire building as seen on a plaque on the building for the ‘Kingsbury Construction’ refurbishment 1999 recently completed with public funds. The defendant through Jaqui Greene then immediately ‘admitted liability’ which they had tried to conceal and the job was then done on instruction from the landlord in the next two days by the landlord’s contractor Kingsbury and paid for by the assisted by the BT story (bogus) insurance claim.

22. HHJ Cowell: 20^th Jan 2006 – Insurances paid £150 excess £100 briefly described as rainwater ingress, D3 75.

23. This issue which is the same pavement as above was not and still is not an insured risk it involves planned bi-annual maintenance by the landlord as it would breach the lease that ‘we are to be protected from the elements’ (much like a roof) as proved at trial. There is no mention of delays here or interestingly what exactly this payment refers to, nor as claimed in the Claimants particulars that led to trial no mention that the landlord ‘failed to effect insurance claims’ except for this tardy claim very much later on as complained by us as a cause of action for damages for breach of quiet enjoyment that it would seem is now completely overlooked as if it is just a mere fact without delay.

24. HHJ Cowell: The second matter this was in Sept 2004 – Waste stack sewage from the flats above entering to the rear wall demised at 104 leaked/damaged the wall with odour sewage permeates. 

25. JF Comments: HHJ Cowell is stating it was Sept 2004 as claimed by us after looking at the evidence disputed by 5 months by the Defendants who said the repair took just a few days in Feb 2005.

26. HHJ Cowell: Jan/Feb 2005 the defendant’s contractor replaced the rear wall.

The leak was stopped on the 31^st Jan 2005 and replacements later.

Insurers paid £100- £150 somewhat misleading which is immaterial 27^th April 2004.

27. JF Comments: Please clarify this point, as it is important. The leak did not occur from April 2004. However, there was another leak in April 2004 in the same location, where the wall had to be replaced, which was dealt with far quicker therefore no complaint was not made by the Claimants nor forms any part of this trial. Why then mention the insurance paid for something at a later date that maybe they did not. Did they ever pay for this repair or did they even know about it, this is not clear.

28. HHJ Cowell: No sooner had that leak been dealt with then another occurred on the 7^th Feb 2005 with a small drop in the basement bathroom from the waste stack, which passed down very close to the rear wall. This leak was stopped on 26^th April but we’ll hear much more about then in due course.

29.JF Comments: No mention of which premises as it was the shop next door at 106 or the fact that the leak was of imminent health and safety danger as was foul waste excrement clearly showing and was stopped again with a delay (a breach of an expressed obligation for quiet enjoyment and hazardous waste) of two and half months. Repairs to put back the new walls were done much later leaving exposed sewage pipes visible.

30. HHJ Cowell: Insurers paid nothing in relation to that but this was the 3^rd matter I dealt.

31. Our case states the insurers still did not know as the insurance was not triggered with speed an expressed obligation in the leases to insure and later we fixed the wall as the Defendants were too slow to do so and we were paid by the insurance later so above is incorrect.

32. HHJ Cowell: 25^th June 2005 – Leak inundated the gallery one week before an exhibition. 14^th Oct 2005- Cost after £100, eventually paid direct as were all to the claimants.

33. JF Comments: Major flooding from ceiling overnight so the description of leak really not accurate. The claimants paid for the ceiling replacement not merited or mentioned. Anything eventually paid was because the Claimants demanded it to be paid back by getting in touch with the insurers agent directly and made a lengthy complaint regarding business interruption save that the landlord may have never effected a claim or told their insured but for our letter to the landlord asking for compensation of £10,000 in total to be put back to the position we would have been had these delays not happened therefore the material damage claim was eventually put to the insurance and they paid material damage but then investigated liability and said that the landlord failed to mitigate its own losses and were therefore liable and/or had breached the terms of their own insurance so would not be indemnified to pay us through the landlord to get compensation as was normally covered by the insurance under the property owner liability POL therefore the landlord was breaching the leases to of clause 7(ii) and quiet enjoyment and nuisance and building regulations and health and safety environmental health and not acting with speed to mitigate losses for which the claimants were entitled under the insurance to business interruption as it was a building issue not a contents one. It is expressed in the lease that we cannot cover the building separately with insurance cover. So us not getting covered were in fact due to the landlord’s failures solely.

34. HHJ Cowell: 20^th June 2006 - £3141.65p other sum £3,441.65p, which was sent by the insurer in the form of a cheque to the claimants.

35. JF Comments: This was exactly the borrowed money that had been paid out by the claimants to builders to fix the premises to mitigate further losses as history had shown the landlord would fail to repair making the claimants go out of business waiting.

36. HHJ Cowell: In view of the considerable arguments and many authorities referred to by Ms Bhaloo to determine what was demised to the claimants and what was: -

37. JF Comments: Unequal footing with claimants not legally trained in understanding of the authorities but common sense did prevail despite the length of the argument and the advantages to the landlord in terms of their QC paid for by the ‘building insurers of the claimants and the landlord’, (a commercial decision we suspect to save a now larger claim, re-insurance, conflict of interest etc). The demise was not the pavement as was argued by the landlords QC.

38. HHJ Cowell: Leases both are similar

39. Lease A 340 – 17^th March 2005 106-8 term was 7^th April £9,000 annual.

Demised premises are defined clause 1 sub clause 2 – Expression; Internal plaster, exterior and interior plaster.

40. JF Flores: All expressed so none can be implied

41. HHJ Cowell: All non load-bearing walls – boards served

42. JF Comments: Very important no structural walls

43. HHJ Cowell: Conduits – public systems

I’ve read that because the question is are the pavements included in the demise.

In my judgement not part not mentioned, only coverings of ceiling demised, clause designed to demise as little as possible: Conclusion on that!

44. JF Comments: Very important point

45. HHJ Cowell: Importance of point – duty of repairing demised the rest to the claimants.

Under lease – No duty to repair gaps in pavement lights – not to say anyone does extent of duty defendants do but we’ll come to that.

46. JF Comments: It is their pavement which leaks into us so it cannot be Caveat Emptor, as an ‘expressed obligation’ in the lease is to be protected from the elements i.e. rainwater stated in our final submission on liability and legal argument, admittedly the Judge did not read.

47. HHJ Cowell: It hardly needs saying the stack is not demised.

The defendants had a right to enter for purpose of repairing, lease enables or empowers – Also repair retained premises.

Plans one could be forgiven for concluding 106-8 where as ground floor is not in (availability?)

48. JF Comments: Need notes from other side which were requested as we have read that they ‘have to provide’ us with them as law since we are claimants in person but as per usual in this case the courts are trying to put us to more expense getting costly and time consuming transcripts and the other side are saying nothing when they know they have a duty to provide. The whole thing seemed tied up between them and we feel throughout very much treated as non-legal so therefore it is harder to argue even what we know to be correct making us easier to take advantage of, which is again points of order and lack of fairness in this trial.

49. HHJ Cowell: Not demised stack / Pavement –

106-8, pipe encased, it couldn’t be seen, in the wall plaster board casing G1 77-80-81.

The defendant’s retained rights if pipes are on the demised premises to enter in order to repair it. Clause 2, A3 page 346.

Tenants covenant: Clause 5.12 c (vi) permits landlord and certain others to enter to repair-

50. JF Comments: However they don’t have to use this unless there is an expressed obligation to repair (with speed), for which there was, for the contractors/others to be paid for by insurances to enter.

51. This is as gooder moment as any to mention the leases:

A3 143 – definitions expression the insured risks, loss of damage by fire risks etc etc etc

52. JF Comments: Throughout this trial the claimants bore in mind the directions of Justice Clarke to show which insurances covered which risks. Bundles D1, D2, D3 and F1 specifically deal with insurance and what was covered as directed by the high courts to include. This formed a substantial part of the trial so the use of the words etc etc etc is belittling the serious issues in exact and appropriate wording. Which is happening throughout this judgement, leaving points out completely as if they do not matter.

53. HHJ Cowell: It is evident that the insurers paid for four different leaks including escape of water- 343 5 sub-clause 3a – Tenant to pay landlord due proportion of the premium.

371. 7(2) Covenant by the landlord to insure the premises against insured risks, convenient speed – subject to lay out and apply rebuild etc.

54. JF Flores: ‘Convenient Speed’ important point and the fact that the defendant had a whole maintenance team (large scale contractors whose clients include the Ministry Of Defence MOD) at their disposal that provided for ceiling replacements for example are very relevant.

55. HHJ Cowell: Number of provisions in fact insurance money went direct to the claimants.

56.JF Comments: Yes as we chased were as the defendant sat back

57. HHJ Cowell: There is an oddity – 5 (1) Service charge payments clause 6 below nothing to do with service charges – so no service charges in this case.

58. JF Comments: This has been extensively referred to in our submissions on liability

59. HHJ Cowell: Clause 5 (6) Para 6 pages A3 356 – Covenant by claimants to repair and every part thereof:

A3 – 69 – Cessor of rent clause stress unfit for occupation of use. Suspended –fit for occupation.

60. JF Comments: Why stress but not justify? This point is worth the rent taken while we could NOT use the building. This is not a judgement we can either understand or has been explained with any reason and since it is the point of the whole reason it went to court needs some form of understandable Judgement needs to be put in place.

61. HHJ Cowell: In fact as I shall say now: There was not an occasion when the premises were not ‘wholly’ and therefore that clause did not come into operation. Odd fair proportion. There it is-

62. JF Comments: Nothing odd about a fair proportion it is our building insurers too as we pay a part. This is not judged or justified as to why it was not seen as unfit for purpose by his honour in what amounts to 5000 days of disrepair.

63. HHJ Cowell: For this judgment is divided into chapters: focusing on causes of action.  The claimants are seeking to rely on covenants implied on the landlord to repair the demised unless statute provide to repair Landlords and Tenants Act 1985 –

64. JF Comments: No not true and HHJ Cowell had not read our submissions on liability making ‘expressed terms’ apply, which are never mentioned once in this judgment. Nor is the fact that our evidence was asked to be put into an email as QC Ms Bhaloo acting for the defendant was allowed to keep (under constant protest by Ms Flores to the Judge) Jo Flores in the witness box very unfairly for four days making the trial of 10 days ‘run out of time’ and it was not extended to let our evidence be aired in the court of law which can hardly be considered to be ‘fair’ especially when now HHJ Cowell is using terms that are completely inaccurate re our causes of action being implied when clearly they were not as implied is as is very well known is very difficult to argue and would suggest that the terms were left out which they clearly were not.

Insurance covered all repairs and neither party had to repair. Speed is the key, which is expressed.

The pavement the key is the ‘element’, which is expressed.

The fire exits are building regulations.

The electricity cupboard is nuisance and the key is ‘notice’.

The air or lack of is not caveat emptor it is deceit and continues to be for a new tenant as advertised and it is a breach of building regulations in a building converted by less than 7 years in 2004.

The contract is ‘void’ from the start and all losses stem from that cause.

Hazardous substances are a matter for building regulations too as clearly they burst all the time.

So this judgement is surreal.

65. HHJ Cowell: Skeleton argument terms of lease and true construction, implied obligations on lessor’s part.

Exceptionally – Implied exterior – maybe Barrell Nova or 1 all England reports 151, correlative obligations 357 a b demands it.

Similarly a lessor is not bound the insurance does owe duties – justice …… in the case of Vorell v’s Security Archives 60 – 258-

66. JF Comments: This is not an insurance case (although the Financial Ombudsman Service FOS is investigating AXA’s ‘commercial decision’ and partisan legal cover in backing the landlord as well a Royal Sun Alliance’s actions through Anna Norrie of Plexus Law as well as other issues of concern re the satellite dispute between the two insurers) or we would be suing them, they are effectively a third party of the defendant. The defendant did, as time and time again submitted, breach the terms of his or her own insurance and breached in doing so the expressed terms of the leases 7(ii) to effect insurances with speed. So whom ever they used as an excuse it is still an excuse and the initial ‘cause’, which lead to all the other issues. Had they not breached the terms then, there would perhaps have been a smoother transaction. The initial cause is the ‘breach’ of lease covenants.

67. HHJ Cowell: In this case: Defendants in no way stood in the way.

68. JF Comments: They did they breached the terms directly ‘standing in the way’ of what back then would have amounted to a small claim which would have been paid had they raised their hands to POL property owner liability part of the policy cover instead of a protracted defence to date of facts and/or if they had been the ones who put it to their insured some other bogus story (not suggesting that they should but history shows that they do that) as they had done before instead of putting in ‘my worded” claim which clearly was accusing them of being liable ‘(the truth’) as I suggested to them when I wrote the draft they asked me to write, I said ‘are you sure you want me to put this to your insured? They effectively made the claim blaming themselves by putting in my draft without my permission, not me when Tushar Shar the financial Controller of OHG sent off my draft which was only to them and (I specified that), when they could have just paid to put us back to our original position or used other methods of compensation by way of rent set off or cessor at the time seeing as they could see and knew they were clearly responsible because of mainly Mr UK their surveyor. They stood in the way through incompetence, harassment and fraud and further they delayed in providing reports from Jaqui Greene and MR UK through to the loss adjusters (In the witness box Mr UK incredibly admitting in the end the meant to be independent loss adjuster Alan Hines wrote Mr UK’s statement himself). Finally us the Claimants being in touch with the insured, the Prime Minister Gordon Brown, Barry Goodwin in the government, the Housing Ombudsman, The Housing Minister, the local MP, The local Mayor, the CEO of UKU (our building insurance) Paul Smith, the local press Camden New Journal, the Sun, the Mirror, the Guardian, The Times, The New York Times, Radio 4, Private Eye, The Housing Times, Community Care Magazine, BBC, Sky News, Press Association, Reuters, Dom Littlewood and other investigative journalists and social media sites etc and Alan Harris our professional counterpart and others was only part of the process of us exposing this and getting justice because we insisted and still do that we were being treated unfairly and the landlord could not stop that process. It is not for a Judge to then compliment them by saying they did nothing to stand in the way when clearly they did everything in their power to stand in the way and therefore escalated the small claim!

69. HHJ Cowell: The claimants enlisted the services of Alan Harris a loss adjuster who had direct communication with the insurers and agents.

70. JF Comments: Alan Harris was a further expense to the claimant once we knew we were being fobbed off, as the issues dragged on and on with still no acceptance of liability and Alan Harris said clearly that the insurers did not want to pay because ‘the defendants breached the terms of their own insurance’ which we the Claimants would never have known had we not enlisted his help in what seemed to be us constantly being left in the dark as to what was going on behind the scenes. The insurers were also as stated again and again having a satellite dispute, which they wanted to keep unexposed as to who would cover the landlord, who was just leaving us the Claimants in a position of ‘indifference’ with substantial interests accruing, for which the landlord was very aware, until the issues were resolved.  However as now becomes clearer, on the suggestion of Anna Norrie the Lawyer for RSA they then all teamed up together with the defendant to get rid of us the claimant (clearly the weaker party) by firstly stating that we had not provided a ‘proper presentation of claim’ yet with no indication of ‘what further we should provide’ and then in very costly legal action, then with what was so obvious to us the Claimants at the time this arrogant and brand new found confidence once they’d ‘teamed up together’ (especially the landlord’s verbal condescending attitude on the phone) putting us to further cost with not legally required audited accounts and then section 25 notices and failure to effect the floor claim until the liability claim was sorted out nor to put in the ventilation and with trying to find clauses that we had to install airbricks ourselves, leaving us again ‘legally’ unable to trade (the then current disaster in these beleaguered buildings), the landlord further  has no hesitation in breaking into our premises not once but twice successfully dancing us into the courts incurring more costs in further harassment hence the court case. With this issue now having taken everything from us and still drags on and on after 7 years.

71. HHJ Cowell; Start – concern – causes of action – Duke of Westminster V’s Guild Lord Millet,  Southwark vs. Mills, A bench  + two components 25 f.g.

Guild 701 f.g. Lord Justice Slade – Hargrove’s – 1 Kings bench 172.

Duty of Care, “we have now turn & submission general principle Hargrove   Coburn & Smith’ Landlords and Tenants; Where the lessor retains- Safe enjoyment obligation retained not condition to cause damages to tenant.

72. JF Comments: We need reasons why ‘Hargrove’ was not relied upon as the landlord in all of our case had the retained parts causing damage to the demise which were outside of our control and upon giving ‘notice’ which is the common theme in Hargrove as oppose to Guild which is more reliant on the ‘implied’ definition of rights to enter and repair, definition of demise, easement etc. Clearly as was proved with the majority of the trial concerned with those facts we gave ‘notice’ within days of any incident or immediately when we were aware so we are not looking for an implied term here in this case. The landlord’s obligations and our own are clearly expressed in the lease as opposed to implied. Neither party overlooked the repairing obligations in the leases. We were both satisfied that all repairs were covered by the building insurance. The expressed covenants were ‘speed’ and ‘notice’ extremely clearly expressed in 7 (ii) and 5(xxii) leases.

73. HHJ Cowell: Rainwater -the defendants failed to clear-, -duty of care-, Coburn & Smith – similar – defects roof landlord-retained control-

74. JF Comments: No mention of our lease clause that is an ‘expressed’ term that we ‘should be protected from the elements’; our submissions on liability have not been read or referred to again here. This case is again not relevant to the contract/covenants in leases of ‘expressed’ terms. The Pavement cannot be caveat emptor (to rent/sell a tumbled down is legal even if dangerous house or we took as seen and anyway there are degrees of that too ie if you can see) as firstly it has been made clear it belongs to the landlord and not us and secondly it acts as a roof that requires notice to fix if it leaks.

75. HHJ Cowel: Ryan & Flector – Where he retains Lord Justice Banks & Sergeant – instances ‘duty’ obligated, obligation ‘duty’ existed: 2 K b 119 / 130/ 134 Woodfall-

Guild ‘duty’ – for short;

Essential point was waste stack pipes & was occupied by the defendants the fact the defendant is the lessor is incidental as occupier defendants under a ‘duty’ that nuisance remedy defect without delay.

76. JF Comments: Without delay important word and back to lease where they had a major maintenance team at their disposal

77. HHJ Cowell: Many cases neighbour: landlord Woodfall: Approve Justice Slade Gill.

78. JF Comments: If HHJ is referring to Woodfall again it does not apply as the landlord built or converted the building in 1999 so building regulations apply and a ‘Duty of Care’.

79. HHJ Cowell: 703-6- Dominant, Serviant, forcing serviant to repair.

If an exterior has been demised that Barrett Lewnova if exterior not demised regard – Occupier or neighbouring premises      Coburn 7 Smith   355 b/c   Barretts case, liability – crucial feature – Neighbouring Occupiers.

Authorities 701 c/n Gill case Justice Slade – REMAINS- has this been affected by 2 other cases by Gordon & Celico 1976 – relied – Implied term – Elaborate Service Charge

80. JF Comments: There should have been no physical interference with the Claimants quiet enjoyment. Again neighbouring or dominant does not apply, as there is an expressed obligation to not interfere with our quiet enjoyment. The landlord does not define the use of neighbouring premises as ‘ordinary use’ by way of defence, if the neighbouring premises are causing us the Claimants a lack of quiet enjoyment by way of a hazardous nuisance from the neighbouring occupiers flat but it is that the premises are unfit as a result of disrepair after the landlord or neighbour as the Defendants wish to put it having been put on ‘notice’ to be repaired and are not repaired with any speed then ‘neighbouring’ word proves no advantage in use of the word neighbour for this landlord as that has nothing to do with anything. Landlord or neighbouring landlord is not relevant to a defence in this situation.

This constitutes an actionable nuisance and especially with stack pipes, which omitted foul and hazardous substances, it also falls under several health and safety clauses, regulations and laws. It must further be said even that it was not that they did not cause the nuisance as they claim it was an insured accident or that they did nothing about it once they were put on ‘notice’ but that the laws so very clearly states that hazardous substances cannot be left in continuance. Which is why Guild and others always say except for hazardous substances. Clearly this also makes either premises at the time these hazardous substances were being allowed to enter the premises ‘wholly’ unfit for purpose to the claimants, triggering the cessor of rent clauses and activating a personal injury claim or further damages for nuisance.

81. HHJ Cowell: -Jackson v’s J.H Watson 2008- Para 52 – Defect faulty construction I was also referred to: - Janet Rogers International LTD 2006 D W H C 174 Chancery- MAINTAIN – COVENANT-

Para 59 – Judgment & Guilds case not even mention and….

Guilds – RELEVANT LAW-

Condsulared – After he know’s – is he liable before he knows, does he know?

82. JF Comments: Yes the landlord knew

83. Clerke & Lindells Tort 19^th Edition 21-42

Footnote. 99 – HARGROVES   COBURN & SMITH…

When a Landlord lets a flat to a tenant – proof of negligence –

-Omitted to clear on notice he will be liable-

84. JF Comments: Yes and the ‘blocked gutter case’ where ‘notice’ had been given, was just a few days causing consequential damage, the Claimants case lasted months and damage was ongoing. Also there are foreseeability issues in our case and the fact that the repairs often reoccurred in the same places. Is it also not good enough as a defence to say that you could not find a pipe that was then leaking profusely for 4 years, as in the electricity cupboard and further that when private contractors (paid for as should have been following the insurance terms in the lease) were brought in, the leak was immediately found!! ‘Trace and remedy’ a leak is an item covered in the insurance (adverts for insurance are now saying they will pay for the damage in finding a leak so this is well recognised to take walls down and then repair fully) policy which is what HHJ Clarke directed us to state therefore it follows that a leak causing nuisance for 4 years in the neighbouring property but having an effect on our property in terms of seepage and smell also fire risk according to the Fire Brigade should have been traced far earlier to avoid nuisance, comply with health and safety and give us quiet enjoyment.

85. Particulars of claim – No part of any particulars are sufficient

86. JF Flores: Again the particulars were changed and dismissed old particulars said then to be fine this is now misleading. Once again too the Judge admitted that he did not read our submissions on liability which pointed to the legality of the situation more so in terms of our words making ‘legal sense’ (and it was not legally required for us lay people to us case law) which can be interpreted if read to apply legally. As law cannot be made or referred to as a ‘law’ unto itself, without these ‘careful words’ being what sets one law, apart form another and creates up to date precedent, which are then and only then relied upon. For want of a better word the laws applied in this judgement in our case do not strictly apply therefore our case has not had our variables applied and does not therefore fit the case law applied at all, if there is any precedent at all.

87. HHJ: Failure to allocate particular set of facts bedevilled this case & made it difficult to try: Judgment that was given before looked at this case; 

88. JF Comments: Originally perhaps it did as this is a serial complex case but many costly efforts were made to then be accurate and very simply clear especially in the schedules, which were accepted as very helpful and easy to understand.

89. HHJ Cowell: Looked at: Callaghan – Knowledge – Knowledge or means of knowledge of neighbouring land, may qualify the broad rule: which appears to indicate is the actual feature and that delay knowing is a breach of duty-

Many cases – defendant remedied problem, admittedly after damage suffered. --When gave judgment 25^th March on amendments – obligation that no damage should arise & occur.

If defendants had not remedied the defect the claimants would have a claim.

90. JF Comments: Ventilation at 106 and floor still not remedied at 104 so how can this apply? Other cases are the subject of delays in remedying causing further damage as in Hargrove.

91. HHJ Cowell: If damage continued.

Defendants were well advised to repair- doesn’t follow: Crucial matter

–      Cause origin of leak

–      Defendant became aware

–      What did they do

–      When did they take such action

Should the defendants repair sooner this exercised my mind so much: - Easement

92. JF Comments: Easement is if the owner gives you permission to use part of his demise and/or similar things. We were in ‘title’ the leaseholder subject to contract of the leases.

93. HHJ Cowell: Owner dominant repair/Serviant no duty at all

94. JF Comments: Not true. It was our ‘duty’ as the serviant to report or give notice under the expressed terms of the lease 5 (xxii) so as to mitigate ourselves in term of insurances covering repairs. If we failed to report we would fail to be covered. The dominant owner had the same duty under the leases 7(ii) to effect claims but added to that he was to effect repairs by way of insurance monies laid our or by his own repair team (his choice depending on the excess) with speed, rebuilding etc.

95. HHJ Cowell: Pipe if leaks

Casing trespass &

Nuisance

Does knows & fails to remedy

96. JF Comments: No he the Defendant as the dominant fails firstly to ‘report’ as is conditional under the insurance policy and secondly he ‘fails’ to repair as in his choice but choice or not (which is not under scrutiny) he does firstly fail to report the ‘same’ expressed lease obligation as the serviant. Neither have a ‘duty’ to repair but both have an expressed ‘duty’ to ‘report’. Failure to report is the original cause!!

97. HHJ Cowell: Strange if law provided different pipe adjoining leaks onto neighbouring land & leaked into it

Damage: liability two different cases determined by same.

GULID CASE      -         LAW      -

Footnote: Great deal of concern:

-       Not lawyers- referred by them, great sense of grievance on their part – did not assist me determining the law.

-       Early stage – 3 large bundles of doc’s prepared by the claimants in an attempt to save cost C1, C2, C3 – more documents then were produced by the defendants and the claimants. A number of documents then were unfortunately reproduced D1, D2, etc – having recourse to jump from one bundle to another.

98. JF Comment:

The bundles were rearranged too and not given to the claimants until the day before trial leaving Ms Flores flummoxed as to where the exhibits were causing delay and finding that some were missing more worryingly.

99. HHJ Cowell:

Footnote: Duplication either B2 exhibits concerns by spoke for themselves, unnecessary costly exercise, suspicion not dispelled by that the solicitors had prepared – what if anything the witnesses should add in what he did or saw – not from documents.

100. JF Comments: This last part about witnesses refers to the fact that solicitors also wrote the witnesses statements to concur with their case put forward, clearly orchestrating/directing the case and not using witness statements as evidence to the point where witnesses would have to effectively rehearse the story and had no real recollection of events since they were made to be puppets to the defence story as constructed by the legal team and insurance agents. Hence the witnesses when questioned by Ms Flores often tripped up with the truth rather than the prepared statements.

101. HHJ Cowell: For example; Para 4 witness statement Jim Gorman JG-54 B2 leak to the electricity cupboard – he says this; Ed Coster emailed me: etc HHJ Cowell reads statement.

-       1^st: Exhibits email

-       2^nd: Perfectly proper – feature, helpful

-       3^rd: Intended as helpful – but is it – of any consequence?

-       4^th: What in document 

-       5^th: Rises only evidences witnesses can give.

A proper sentence would have been in accordance then I inspected and found…

Anyone who finds me over critical – drafting of particulars – perhaps a history of events, with no purpose suffering with purpose blaming the defendants for them conclude criticism of witness statements prevalent amongst local authorities-

18^th May 2005 B2 – 105-106

Concerns about first three or four events. Stack pipe 104 & 106-8. Emphasis on delay in remedying those things merely mention 12^th August 2005 – she is seeking compensation a minimum of £10,000 from the defendant-

102. JF Comments: Always trying not to fight with this landlord and being respectful, helpful and fair in asking for exact ‘out of pocket expenses’ that had been laid out by the Claimants. This was so as the landlord was not unduly enriched with rent to them and overheads for us the Claimants including forced loans continuing to be paid by us the claimants whilst interruption continued without any urgency in stopping it by the landlord as they were getting paid by the Claimants anyway.

103. Referred to D2-375- D2 376-7

Cheque

Reference to detail: 388

One stage August 2005 – quantum of claimant to the insurers for the fear of putting up the premium. Not making any claim on her insurance – not a criticism in any way. Jan 2006 – claimants made further claims.

104. JF Comments: It's a building claim that we are insured for with the defendant through AXA and are ‘forbidden’ as set out in the lease ‘an expressed term’ to get our own building insurance and or further we had considered the joint insurance as ‘our’ own as is right but we were not aware that insurers can put a commercial descision before the interest of two joint parties under one building insurance cover. A claim on contents and public liability insurance was simply not relevant to a building issue so will not be covered by fine art and antiques insurance cover at all. It may simply put up a premium if it is known that the building is likely to endanger/damage ones stock or the customer’s safety as in public liability insurance for which we held cover.

105. HHJ Cowell: I will have at hand: Particulars of claim:

Early stage – Schedule prepared with assistance.

106. JF Comments: Exactly so it did not bedevil the case as now used and stated here that it was prepared at an early stage.

107. HHJ Cowell: A20, A3, paragraph 4, 5 & 6 of the particulars of claim disclose no cause of action: amendments by adding paragraph 3 – though it in itself was not in dispute.

108. JF Comments: It is relevant to give a historical reference of events. A letter was sent to the defendant prior to grant expressly asking that the new premises comply with the ‘standards’ of the other shops. Since Ms Gavin (Flores) has previously suffered business interruption at the defendant’s hands at 104, which she had had for 4 years, she knew how the landlord could be stubborn and unhelpful. She had resolved the previous issues by way of exposing them on a national TV. Programme prompting the landlord to act and was compensated effectively with this approach. This ‘standard’ letter send prior to grant was one of three essential documents Ms Gavin used in this court case as she stated at the opening of trial she would.

To make reference in paragraphs 3. 4. 5. 6. In the particulars of claim as having no cause of action with regards to the floor, the shutters, the ventilation and the usage in terms of the new space at 106 as a social enterprise available for hire, is not looking at Particulars vi and vii in terms of the claimants ‘intentions’ clearly spelt out for the demise of 106 and iv in terms of remedial action to reinstate a floor, security shutters and ventilation (referring to the standards letter prior to grant) all of which could be claimed for under the insurance as ‘theft’ since monies had been laid out by the public purse to the previous tenant for these ‘standard’ fixtures the same as the other shops and to be expected as ‘standard’. ‘Structural remedy’ was too covered under the ‘HAPM’ Housing Association Property Management insurance for structural defects in construction, in that no airbricks had been put in therefore there no air whatsoever, which should not have been a problem in remedy since the defendant held as is legally required in a new construction of less than 7 years (but it is actually cover for 30 years) and as ‘covered’ it is easy to simply claim for and is a must since building regulation were actively being breached.  Ms Flores states this at the opening of trial as her second of three documents relied upon, as she had asked for ventilation to be claimed for very early on in the tenancy.

109. HHJ Cowell: Remedy of derogation from grant – none of those matters arises –

110. JF Comments: In our submissions they do derogate from grant and in our amendments to particulars that were refused we put this, as a cause of action, as the property is not A3 as does not comply with the planning for A3, which would include ventilation. All this is in our submissions on liability but as we know was not read or referred to. So the matter does arise but has been dismissed early on.

111. HHJ Cowell: Lord Millet & Southwark & mills

Bases stack pipe 104 – 15 – 19 Particulars of claim –

Paragraph 50 (13) (14)

Defendant dealt with this 20, 24 schedule 21 – hint what cause of action

112. JF Comments: Hint not explained what hint in which cause of action and how is it relevant? Paragraph 50 is very clear in stating causes of action. Breaches of the lease agreements, negligence, unlawful breaches of statutory duty, nuisance, harassment, unlawful eviction and/or unlawful trespass and by reason of it the Claimants have suffered immense losses and damage, damage to reputation, loss of goodwill, depression, distress, stress, inconvenience and injury to feelings.

113. HHJ Cowell: Paragraph 5 (i) (b) in breach of the said leases but word ‘negligence’ is referred – not is expressed!!!

114. JF Comments: Particulars of Claim “PARTICULARS” (i) quote: ‘The defendants have breached their express obligations under both leases in that they have prevented the Claimants’ quiet enjoyment of the two premises. How then is that not expressed as expressed?

115. HHJ Cowell: Leak stopped 31^st Jan 2005, early Feb, casing.

G1-Tab page 3 – location stack shows

Point made by the defendant – report – ascertain its source –

116. JF Comments: Which point? This is very flimsy for a judgment. What also is the claimants point? Claimant’s case rarely mentioned except maybe once in a derogatory way about us always seeking to complain using ‘implied obligations’, which is inaccurate in itself.

117. Claimants B2 – 105 complain – months of suffering – was reasonable action taken, should cause of leak discovered earlier.

118. JF Comments: Incompetence is not a defence professional contractors are paid for by insurances and are their to give the leases its proper ‘business efficacy’. If we were to rely on bob the builder we would have put him in the lease and not insured. This is not an old fashioned case it is a modern case that simply requires a landlord to inform/’put on ‘notice’ an insurance company the minute an accident or incident with a building occurs much like with car insurance or any other insurance cover. It is within the terms of the policy and it is expressed in the leases. There is no need to ponder some old law that is of no modern relevance about easements, repairing obligations, duties, neighbouring occupiers or the like. The landlord simply failed to inform their insurers end of!

119. HHJ Cowell: Job card issued by B2, 184 27^th April 04’ leak affected leak below, Mr UK.

5^th May 2004 – Flat 3 Cromer House where leak originated B2 187

12^th May 2004 – Due B2 187 to be.

Repair – wall tiling 14^th Oct 2004 tiling would cure it.

Mr UK Jan 2005 – Attended 24^th Jan – pinhole –

31^st Jan – looked at stack pipe after ascertaining no leak from flat 3 – before leak

Repaired 7ft rubber plant during artist A.R.s show, should not been seen – pinhole promptly remedied by the defendants with jubilee clips after casing removed

Jan – 3^rd Feb 2005 –

One item in insurance claim-

Claimants ‘crack discovered’ 24^th Jan – remained 3^rd Feb fixed –

Guilds defendants not in breach of ‘duty’ flat above bonafide source lay there.

120. JF Comments: As proven, jubilee clips etc the cracked pipe was on the claimant’s premises so the source lay there.

121. HHJ Cowell: Fortunately the defendants had insured against physical damage –

122. JF Comments: Yes so did the Claimants fortunately. This is very pro-landlord wording.

123. HHJ Cowell: 106-8 – Particulars of claim – 20-23 – Dates are arie paragraph 20 20^th July – but 7^th Feb that year –

124. JF Comments: At the end of January 2005 the claimants claimed tat the drop of water was found on the ceiling this simply fell in line with Ms Gavin’s memory at the time that the two leaks one at 104 and one at 106 happened one after the other. It was established in the case that the claimants reported the second leak at 106 on the 7^th Feb and that was agreed with telephone record evidence. The stating that the repairs were not carried out in full is correctly stated as in July when the wall was put back by the claimants after waiting for the defendants who failed to put the wall back. It was however established again with repair record evidence that the leak itself of hazardous waste in the form of excrement was stopped only at the end of April.

125. HHJ Cowell: Para (50), (15), (16) – Defendants (25-27)

Schedule 22

Part of insurers claim – G1 35/36

Feb 2005 – Claimants did works in the bathroom new boiler – first drop of water 7^th Feb, diary entries 7^th, 8^th, 14^th –

Visit 28^th Feb Mr UK

Works orders flat above

Doesn’t matter flats above works or not the trouble 29^th March reported again resulted in visit by Mr UK 1^st April – 4^th April, Easter weekend before that, Damp on wall Mr UK anxious to ascertain weather the leak had come from above –

Optimistic belief if staining spread or decreased –

126. JF Comments: How can Mr UK’s anxiety be implied how about he was busy drinking tea, could that be implied equally?

127. HHJ Cowell: Result further complaints by the claimants he decided to issue a works order on 2^nd April – 11^th April that he did on 6^th April – Removal of duct casing & replacement C1 629 C1 170.

15^th April 2008 – Claimants took photo’s G1 77 – Brown staining on duct etc G1 80-81 – Pencil mark.

Benefit of hindsight he had a naive belief that the stain would dry out and would not spread –

128. JF Comments: Naïve look up the word in a dictionary we are talking about well-paid professional surveyors here again very pro-landlord use of wording. To paint over shit is ridiculous in the extreme! We have no faith in this judgment it is perverse in its wording.

129. HHJ Cowell; Carpenter 8^th April – he left

Plumber 11^th April – he left

Order not result in cure

Plasterer arrived – Except Ms Flores evidence on this; I find 25^th April – Ms Flores and the plumber took off the casing and removed filthy material.

25^th/26^th/April – Flood foul material.

26^th April quote: ‘One can see the state of ……’

G1 73/9 82/83

Show by 29^th April – Jubilee Clips

G1 728 – Secured

26^th April 2005 – reporting on case

D1 / 130 – Course of that email

Reference ‘last week there was a really bad smell’

130. JF Comments: No reference made to the fact Ms Flores was contacting these contractors directly and also catching them in the street and going out of her mind chasing anyone who could fix the problem. Such was the distress with this problem that she even assisted a hesitant contractor in taking the wall down which was so sodden they took it down by hand.

131. HHJ Cowell: 20^th Feb 2006 – Loss adjuster – C1 337/8

Apparent from that email that smell was really bad before visit to Mr UK & pencil markings which to my mind makes it clear there was a very bad smell –

Paragraph … “really bad smell”

Description of visit refers to pencil markings-

“The smell was really dreadful” phone calls to Mr UK 6^th April when her …

…..ordered ….. – 8^th & 11^th April – didn’t stay.

Ms Flores oral evidence – casing removed 27^th April not before.

Mr UK last visited 8^th April, cure 26^th April, renovations very much later –

As this was an insurance matter …..

Leo installed central heating system.

2^nd April / 30^th May –

132. JF Comments: What are these dates Leo did the central heating over two weekends and one was a bank holiday. The ceiling in big office was installed as there was not one ever but this was not a health and safety issue like the shit! The ceiling was a designer improvement to look like the base of a spaceship with specialist lighting for an executive boardroom style meeting room as advertised a large meeting room.

133. HHJ Cowell: Chronology: Letter of claimant 18^th May 2005 – some decoration of basement done June already mention 2^nd August 2005 £10,000.

134. JF Comments: £10,000 offer made to put us back on track with rent paid, bills, business rates and to save the landlord from what turned out to be deemed as failures on their part by their own insurers. Claims made then were accurate and no amount of friendliness helped these bully’s and con merchants even when we were ‘a good tenant’ as stated in Chris Natt’s the commercial Manager’s evidence and Jaqui Greenes email where she implores repairs to act quickly for this commercial tenant ‘who is putting thousands of pounds worth of improvements into our buildings’.

135. HHJ Cowell: Emails as to wisdom of making a claim; D1 154/5 – D1 185/7 – Estimate

136. JF Comments: From the claimants point of view and not explained by his honour as such as to how many times and right up until the end and even with a great loss adjuster Alan Harris and expensive mediation through Lynne Brooke of Veale Wansborough and Matt Kelly of 39 Essex did the claimants so often attempt to settle and not fight with the landlord. This is a very valid point as the claim could have been reduced if we all spoke about it in ‘mediation’. When we did eventually a few days before trial which the landlord did to save face the landlords only wanted to save the cost of the days in court as reflected in their offer being directed on the phone by the insured.

137. HHJ Cowell; Eventually polish builders did work ground floor.

138. JF Comments: Paid for by the claimants.

139. HHJ Cowell: Oct 2005 – Insurance paid Jan 2006.

Judgment – Sufficient alerting of Mr UK

(1)          Only 2 months before 104 stack

(2)          Leak flat 1 if ever there was one cured

(3)          Despite evidence that he didn’t smell anything – sufficient was a smell & photos state of premises 15^th April support evidence there must have been smell even if Mr UK did not smell it.

Jaqui Greene – impressed on Mr UK urgent!

140. JF Comments: Health and safety and no law mentioned by HHJ Cowell on this nor reference to our submissions.

141. HHJ Cowell: Pencil – dry out!

Ms Flores it is suggested is ‘Prone to exaggeration’ – prefer Ms Bhaloo on this –

142. How dare this assertion be put here! If the defendants had a defence they would not need to lower themselves to use slander or character assasinasion!! This needs to be justified, as is slander now from HHJ Cowell too. Its one thing the other side trying to put down a claimant but to be accepted but a Judge without any justification seems very odd and uncalled for. Is his honour suggesting our very solid submissions or case is exaggerated with reams of documentary evidence and photographs? Have they been read? This is a joke! Twenty-two months and representing ourselves in person should be praised for its bravery and sheer skill, which would have been better, placed doing our normal jobs, fighting for children’s rights and running business. This case has its own merits and stands alone without slanderous allegations as to the state of Ms Flores who is extremely angry and stressed with justification, this was covered in our submission but has not been referred to. Ms Flores has acted reasonably at all times albeit with absolute anger stating her true losses. At a mere 3 bookings a week at £500 each that is not exaggerated The word is not used by accident either as the ‘only way’ the defendants can have their costs met by the insurers, as it is in the small print of their policy, is if one exaggerated a claim. I don’t think it is co-incidence that this was said in Judgement and that numerous references to the insurers not being liable are also made when the case was not even against them but they were they payees of it! All loose end here are sublimely tied for the legalities necessary for the benefit of all but the claimant but that slander is further salt in the wounds however necessary it was for them all to use that word and we will rigorously defend such slander in the court of appeal to have that self serving statement revoked. 

143. HHJ Cowell: Ms Flores should have asked about the smell –

Mr UK should have raised an order renewal of the casing and …..

Had that been done by the end of that working week a delay of 3 weeks would have been avoided, claimants claim is good for that 3 weeks.

144. JF Comments: Where is the math? 7^th Feb to the 29^th April? That is 11 weeks in a hazardous waste repair which should be dealt with within 48 hours.

145. HHJ Cowell: Difficult to determine: Means of knowledge was with Mr UK 1^st/4^th April

Do not find the defendant is not in breach of duty by the leaking – In my Judgment time that it took – Information location of stack known to defendant.

No breach of ‘duty’ on insurances

146. JF Comments: They failed to effect insurance claims to notify their insured how then are they not in breach of the leases under the covenant to insure and the insurance policy, which stated that they breached the terms this is contradictory to the evidence and states no case law to back up the contradiction.

147. Next event: 24^th / 27^th – Flood –

-Schedule 22 – 24 –

Insurance Paragraph 32

7 (i) (5) In breach of the leases negligence –

Sub plot: Floor tiling to floor damaged to

Particulars 29 – 32   50 (19)

D 3 ? 36

Schedule 24 -26

HHJ Cowell: Flood unforeseeable accident, Mr UK’s understanding gleaned from others, whether claimant no cause of action repairs of done very promptly. After insurers paid complaints about floor –

148. JF Comments: How is a foreseeable accident justifying a two years outstanding repair, which both our landlord and our own surveyors both say is an insurance job that the claimants proved and was then even accepted by the material damage policy now not being accepted? Again a contradiction to the evidence with no law to say what has made this decision held.

149. HHJ Cowell: No liability attached by defendants & because they persisted to say any more – not to go on except – 45/53 Ms Bhaloo’s submission…

150. JF Comments: Defendant’s submissions always referred to

151. (Lunch break from 1.05pm we arrived back at 2.08pm and Judgment had already commenced in continuation without us so we don’t know yet what was said…)

HHJ Cowell: June 2008 – Cause of action….

Reply breach of lease –

Negligence –

Building regulations –

Pavement not demised to the claimants

Possession and control defendants

Difficult to argue in Guilds case cannot apply – Having knowledge should repair it-

152. JF Comments: As in Hargrove.

153. HHJ Cowell: In its very nature may leak, unlike pipe –

If pipe does leak clearly alerts occupier to repair it –

Degree & smell – jubilee clips.

But because a tenant could so readily reach the pavement lights – Tenant could easily mitigate its damage.

154. JF Comments: How can it be said that the claimants should touch, never mind fix something that is on a public path and is not in their control or demise, should we for example fix the roof as well because we can see it? In Oct 2004 there is no mention that after exhaustion and mounting debts where now having to mortgage a fully paid for house by one of the claimants and we did attempt to mitigate all our losses within our control to continue with our business. So we did make an attempt. It was only then we found it was the defendant’s contractor who had installed the pavement and the defendant repaired in two days after repeated denial of liability. Further at later stages we were ‘forbidden’ see email Jaqui Greene and later Oliver Barnett to contact Kingsbury directly when the leaking reoccurred. It would further be then illegal if we employed our own contractors to touch their pavement and we could be held liable to them for any damages. We did not at any stage ‘adopt’ the pavement as our own or the repairing of it as is right and proper. ‘Accessibility’ does not imply or refer to the legality of it.

155. HHJ Cowell: Tenant is more aware –

Short answer by defendants – Caveat Lessee

156. JF Comments: Caveat Lessee cannot apply for reasons to do with conversion in 1999 and of the breaching of expressed obligations in the leases to have protection from the elements including rainwater. The whole issue lay on whether the pavement was the landlord’s and it was as was defended by them that it wasn’t and proven by us the claimants that it was.

157. HHJ Cowell: Defect – 8^th April 2004 – 106-8-

Reason I find defect there at time of grant, claimants say first time it rained – oral evidence satisfied – May 2005 – reported

158. HHJ Cowell: This is outrageous it is not a structural ‘defect’ it is a water ingress. This is a misleading judgment using the defendants very hard pushed stretched argument of caveat emptor and never putting claimants case forward once in summing up which is also imbalanced.

159. HHJ Cowell: Response landlord not responsible –

1^st written evidence from defendant 

15^th Oct 2004 125

28^th Oct D1 126 – after she had written those emails – works been done by Kingsbury – works done 1^st Nov 2004 – oral evidence established that date though particulars of claim suggested Sept emails show after that Ms Flores accepts 1^st Nov 2004.

Defendants point about caveat lessee is correct –

If wrong about that:

The test in Guilds case ‘doubt has been expressed about the defendants responsibility’ this repair is simple in comparison to waste pipe.

160. JF Comments: It is not a simple repair and can only be carried out by Kingsbury. It takes 5 professional builders, a lorry full of molten substance and is undoubtedly expensive. We fulfilled our internal repair obligations extensively see submissions on liability. To now be told we should have filled the ‘gaps’ in a public pavement ‘demised’ to the landlord and that if the judge is wrong then the test is ‘was it simple’ (as opposed to is it legal?) is again misleading, belittling and down right outrageous. Had we touched their property they could sue us! The same can be said if we cut into the structure of the building without permission to install air bricks a subject which to date all requests to repair have been since 2005 ignored. We are far from stupid to touch what is not ours and is on a public path or to diamond drill holes into the defendants building without firstly planning permission, which we cannot obtain, and secondly the right to do so as it belongs to the landlord.

161. HHJ Cowell: Claimants remedy matter later could have paid and paid later – Insurance –

No question under Guilds case –

-Not extraordinary work –

162. JF Comments: The following is the next leaking of the same area in 2006.

163. Oct – attempt to remedy FWA

3^rd Oct – useless material used trodden on brought into space, remedy Kingsbury 16^th Oct

164. JF Comments: The guest attending the magazine launch sponsored by Waitrose walked the useless material referred to be bitumen a sticky black molten substance, which damaged our wooden floor as, into 106 premises. There is no comment here that the leaking was reported in June 2006 and that a botched repair was made the day before the sponsored magazine launch. The repair was delayed, foreseeable and the claimants suffered material damage and loss of reputation.

165. HHJ Cowell: 3^rd Oct G1 40-44-52

G1 70-74- 16^th Oct –

B2 151-2 Email 5^th August B2 150 3^rd Aug

Claimants repeatedly phoning –

Delay – understood insurance might pay for this particular matter Jaqui called insurers 7^th Aug C4 215 19^th August – Thames Water not fault of defendant –

166. JF Comments: It was nothing to do with Thames Water. The word ‘might’ is very interesting here as this was not an insured risk.

167. Insurance not liable to pay anything – appears reasonably clear the defendants fixed Guild principle ‘no culpable delay on part of defendants.

Defendants……………………………….

Claimants could have paid Kingsbury and argued about who paid –

Defendants not in breach – liability – Not the defendants –

168. JF Comments: Again same problem as two years before and this pavement leaking reoccurred again another two years later, which just shows it, needs bi-annual maintenance. Evidence was shown that the previous tenants had the same leaking in of rainwater from this pavement. If it is that the defendant wanted to improve by way of conversion the premises by installing a glass ceiling effect to the basement than rather the same as any roof it is foreseeable that the sealant will need maintenance but more so for a public pavement.

169. Electricity room – June 2005 – Nov 2005

Schedule pg 27 also deals with second……

Jan – May June 08 – Reply 11 (i) (v) hint of cause of action-

Again no covenant in lease which assists the claimant but particulars never formulated.

170. JF Comments: Submission on liability extremely clear but admittedly clearly not read by HHJ Cowell. Also xxii in the particulars states the defendant unlawfully failed to ensure that there were effective fire exits, again this is also a breach of building regulations and statutory obligations.

171. HHJ Cowell: Breach of statutory duty: Typical all allegations made!

172. JF Comments: Derogatory to claimant in language used here.

173. HHJ Cowell: Not demised –

C3 Tab 4 131/4

August 2005

Work was done by Thames Water-

“Did not know where leak came from – cannot be failing to remedy it”

174. JF Comments: How many surveyors and how many years does it take to find a leak on their own premises? No insurance effected after notice was given. Breaching expressed terms in the leases to notify insurers as the seepage of leaking pipe in the electricity cupboard permeated both premises in terms of water and of smell. The repair took 4 years to find the leaking pipe, which was in a plywood suspended ceiling and stop the water ingresses. This was only after the insurers were alerted and the defendant brought in a competent private contractor.

175. HHJ Cowell: OTHER PROBLEMS

176. JF Comments: These are not other problems and should not be lumped together as such as all the issues are serious or why would we take the time and expense of court proceeding to add them in.

177. Paragraph 31 wiring, fire panel, smoke detectors, security shutters & fire panel.

178. JF Comments: The wiring, on open spurs and not ring wired so as such was dangerous. To save a claim on the building insurance the landlord told us The Claimant we would have to fix the wiring ourselves to make it safe, which was not true. The smoke detectors are also covered by insurances, as was the fire panel as these are landlord’s fixtures. We had other duties under fire precautionary action such as having fire-fighting equipment again the landlord put us to the expense of fixing, that which was not ours to fix. The security shutters were as seen on all the other shops a standard requirement and since we did not them we were very early on broken into via the window. We had asked for the shutters ‘prior to grant’ and although verbally agreed we also have in writing our request in the letter requesting the grant of lease. The expensive security shutters were paid for by the public purse so they were insured.

179. HHJ Cowell: No airbricks –

180. JF Comments: Airbricks were a major issue and were extensively covered in our submission, which has not been read. Clearly this breaches building regulations and is derogation from grant of A3, which makes the who claim on 106 a total constructive loss until 2014, on a then ten year lease, so effectively any other problems (which can be subsumed apart from harassment) are overshadowed by this essential first ‘fraud’. If this were judged correctly then the whole case of 106 until 2014 would be a victory for the claimants as is asserted throughout.

181. HHJ Cowell: Defendants improved fire exit –

182. HHJ Cowell is implying that the landlord went out of their way to ‘improve’ the fire exits and not that this did not comply with building regulations and give business efficacy where there would be none if it were not in the leases as an expressed obligation. It is a case of ‘it goes without saying’ that the premises required a means of escape from fire as the law and building regulations require. There is no mention of claimant’s case or our submissions on liability on this either. Improvements are misleading they were not up to regulation and subject of a lengthy complaints procedure by the claimants lasting 4 years before they were made safe.

183. HHJ Cowell: Defendants answer – caveat lessee

184. JF Comments: Building regulations and fire regulations plus lack of business efficacy cannot be defended by Caveat Lessee. In this trial it was exposed that the entire residential block also has no fire certificate. Perhaps if a death occurred this would be the point where the landlord would be seen as liable in negligence or would this residential landlord still claim Caveat lessee.

185. Ventilation – Airbricks

FAIR!!!!

186. Is the word ‘fair’ a judgment and accordingly then to what law is the word  ‘fair’ legally applied.

187. 25^th July 2010 difficulties…. Mr Hines came on scene C4 292, 8^th August 2006-

188. JF Comments: No mention that the loss adjuster Alan Hines of QuestGates was bias and wrote the defendants witness statement as stated by Mr UK. “Difficulties’ falls much more in line with the ‘commercial decision’ the insurance took to collaborate with the defendant and anyone else it would seem to save a claim. The solicitors paid for by the insurance  (solicitors who were also writing the witness statements as stated by his honour) had a total conspiracy from the start to pervert the course of justice with legal might resulting in a miscarriage of justice, with a very one sided and law wise weak argument and ineffectual judgement in its obvious sweeping errors.

Further there is a conspiracy to stop the claimants now in appealing this Judgment (that is said by all accounts to be highly unusual that we have been asked to provide the transcripts) and more so the fact we have been given just three weeks to put together argument without any recourse to funds so no legal representation whatsoever as everything has been taken from us and we have been put into nearly half a million pound debt, proves to the Claimants that a conspiracy of the powerful people involved is afoot.

We could give up at this stage because of the conspiratorial nature of this behaviour by all the law people involved but we will attempt to try to be judged fairly having no more faith that this could happen again and again. They say “God give me the strength to change the things I can change and the wisdom to know the difference” but there is much more at stake than for these two individual claimants than can be seen. That sort of passion and belief system cannot be toyed with easily even despite now severe hardship and major children and young peoples issues of national concern that could be being helped by the Claimants instead of wasting the Claimants time and energy on these building issues and robbery of what belongs to them without any recourse to public funds as is the case of the Defendants. The attempts to stop us appealing and lack of acknowledgement in stopping the quantum hearing which took place despite fierce application to stop it, as well as a section 25 and the proposal that we supposedly needed to be relieved from forfeiture when it is our case that it was trespass are corrupt and designed to crush us.

By the lunch hour the day after the 9^th Sept 2010 Judgment a green BMW drove onto the pavement nearly running over two of the neighbours now witnesses and a guy jumps out saying that our/the Claimants shops were now his shops. How does that happen? How did he by that evening even know? Attempts to pass off the shops, as A3 are still happening to date although a full year later both are still empty probably due to the damp smell and active condensation especially being empty there will be huge mould growth again and again as it grows fast.

189. HHJ Cowell: C4 246

The claimants made a claim for £280,540 from the defendants & £164,??? From the insurers for delays water damage, unable to assist…

C4 208 £400,000 – Gordon Ward –

Not provided sufficient evidence –

190. JF Comments: Providing more and more evidence with added time delay and cost was the most genius strategy adopted by Anna Norrie of Plexus Law the RSA insurers. Anna Norrie is, as one would imagine well versed in how to deal with insurance claims as she works for the biggest insurance agents. Anna Norrie never made the ‘nature’ of the ‘exact’ ‘evidence’ she needed clear as to what the Claimants could ‘further’ provide that they had ‘not’ already. Further time and expenses was then put on the claimants in making them pay (£2,000) for audited accounts. This was a two-pronged approach by Anna Norrie, as seen in ‘satellite dispute’ letter she wrote to the building insurers. It was ‘who was going to pay’ that was Anna Norries concern, ‘UKU’ UK Underwriters CEO Paul Smith based in Leeds (now Eagle something or other but some kind of 20 years old company based in Leeds covered by AXA that the insurance broker FARR PLC brokered with to cover the building) building insurers or RSA liability insurers. Evidence hi-lighted as one of the three documents that Ms Gavin (Flores) would rely on, proves this was the new approach adopted and directed by Anna Norrie. Her next strategy was to beat us the Claimants down in a quantum game to attempt to reduce the claim and all this lets not forget as is most important point was at the willingness and compliance of the landlord the Defendant to be seen back then not to be liable and to save them and their insured a claim. Luckily for them all Mr Hall the Single Joint Expert was fantastic for the job of reducing quantum as he holds a major conflict of interest in that he is the Defendants solicitors firm Bircham Dyson Bells ‘auditor’ and his evidence should be struck out despite the fact we paid £8,500 for it. We did put him on notice as a joint expert not to attend the Mondays quantum hearing but he did not even replied and as he has a closer relationship as is obvious with Bircham Dyson Bell solicitors than we could imagine. The legal compliance department really should have picked up on this and Alan Harris the Claimants loss adjuster said he had never heard of such a conflict of interest to be allowed.

The QC Ms Zia Bhaloo of Enterprise Chambers is understandably giving the Judge what he needs to make decisions and justify them but to use laws that do not apply and to ride rough shot over our claims in this judgement leaves a lot to be questioned about the courts themselves and the administration including the clerk Pushkar Kapole who frequently replied to the defendant but not to the Claimants, especially when asking for disclosure where we had to wait 4 months and yet the Defendant got there disclosure in one week or our case would be thrown out. The whole episode was unbelievable.

191. HHJ Cowell: Claimants made threats –

192. JF Comments: Press threats were made but still we have attempted to remain respectful although we are still at liberty to expose this perhaps because of its length in a film, not something we relish just an option available still if justice does not prevail. We can call it “£100 off”!!

193. HHJ Cowell: C4 164 Plexus Law 27^th Nov 2007

Proper presentation of claim 2008

C4 133

Ultimate point stemming from that-

194. JF Comments: That is a bit ‘subliminal’ as those are the Royal Sun Alliance lawyer’s Anna Norrie of Plexus Law’s exact words.

End Notes Law Quick References from this Judgment are here summary for ease of reference:

9.)A) 65. HHJ Cowell: Skeleton argument terms of lease and true construction, implied obligations on lessor’s part.

Exceptionally – Implied exterior – maybe Barrell Nova or 1 all England reports 151, correlative obligations 357 a b demands it.

Similarly a lessor is not bound the insurance does owe duties – justice …… in the case of Vorell v’s Security Archives 60 – 258-

B) 71. HHJ Cowell; Start – concern – causes of action – Duke of Westminster V’s Guild Lord Millet,  Southwark vs. Mills, A bench  + two components 25 f.g.

Guild 701 f.g. Lord Justice Slade – Hargrove’s – 1 Kings bench 172.

Duty of Care, “we have now turn & submission general principle Hargrove   Coburn & Smith’ Landlords and Tenants; Where the lessor retains- Safe enjoyment obligation retained not condition to cause damages to tenant.

C) 73. HHJ Cowell: Rainwater -the defendants failed to clear-, -duty of care-, Coburn & Smith – similar – defects roof landlord-retained control-

D) 75. HHJ Cowel: Ryan & Flector – Where he retains Lord Justice Banks & Sergeant – instances ‘duty’ obligated, obligation ‘duty’ existed: 2 K b 119 / 130/ 134 Woodfall-

Guild ‘duty’ – for short;

Essential point was waste stack pipes & was occupied by the defendants the fact the defendant is the lessor is incidental as occupier defendants under a ‘duty’ that nuisance remedy defect without delay.

E) 77. HHJ Cowell: Many cases neighbour: landlord Woodfall: Approve Justice Slade Gill.

F) 79. HHJ Cowell: 703-6- Dominant, Serviant, forcing serviant to repair.

If an exterior has been demised that Barrett Lewnova if exterior not demised regard – Occupier or neighbouring premises      Coburn 7 Smith   355 b/c   Barretts case, liability – crucial feature – Neighbouring Occupiers.

Authorities 701 c/n Gill case Justice Slade – REMAINS- has this been affected by 2 other cases by Gordon & Celico 1976 – relied – Implied term – Elaborate Service Charge

G) 81. HHJ Cowell: -Jackson v’s J.H Watson 2008- Para 52 – Defect faulty construction I was also referred to: - Janet Rogers International LTD 2006 D W H C 174 Chancery- MAINTAIN – COVENANT-

Para 59 – Judgment & Guilds case not even mention and….

Guilds – RELEVANT LAW-

Condsulared – After he know’s – is he liable before he knows, does he know?

H) 83. Clerke & Lindells Tort 19^th Edition 21-42

Footnote. 99 – HARGROVES   COBURN & SMITH…

When a Landlord lets a flat to a tenant – proof of negligence –

-Omitted to clear on notice he will be liable-

I) 85. Particulars of claim – No part of any particulars are sufficient

J.) 89. HHJ Cowell: Looked at: Callaghan – Knowledge – Knowledge or means of knowledge of neighbouring land, may qualify the broad rule: which appears to indicate is the actual feature and that delay knowing is a breach of duty-

Many cases – defendant remedied problem, admittedly after damage suffered. --When gave judgment 25^th March on amendments – obligation that no damage should arise & occur.

If defendants had not remedied the defect the claimants would have a claim.

K) 91. HHJ Cowell: If damage continued.

Defendants were well advised to repair- doesn’t follow: Crucial matter

–      Cause origin of leak

–      Defendant became aware

–      What did they do

–      When did they take such action

Should the defendants repair sooner this exercised my mind so much: - Easement

L) 93. HHJ Cowell: Owner dominant repair/Serviant no duty at all

M) 95. HHJ Cowell: Pipe if leaks

Casing trespass &

Nuisance

Does knows & fails to remedy

N) 97. HHJ Cowell: Strange if law provided different pipe adjoining leaks onto neighbouring land & leaked into it

Damage: liability two different cases determined by same.

GULID CASE -  LAW -

Footnote: Great deal of concern:

-       Not lawyers- referred by them, great sense of grievance on their part – did not assist me determining the law.

-       Early stage – 3 large bundles of doc’s prepared by the claimants in an attempt to save cost C1, C2, C3 – more documents then were produced by the defendants and the claimants. A number of documents then were unfortunately reproduced D1, D2, etc – having recourse to jump from one bundle to another.

O) 99. HHJ Cowell:

Footnote: Duplication either B2 exhibits concerns by spoke for themselves, unnecessary costly exercise, suspicion not dispelled by that the solicitors had prepared – what if anything the witnesses should add in what he did or saw – not from documents.

P) 109. HHJ Cowell: Remedy of derogation from grant – none of those matters arises –

Q) 111. HHJ Cowell: Lord Millet & Southwark & mills

Bases stack pipe 104 – 15 – 19 Particulars of claim –

Paragraph 50 (13) (14)

Defendant dealt with this 20, 24 schedule 21 – hint what cause of action

R) 113. HHJ Cowell: Paragraph 5 (i) (b) in breach of the said leases but word ‘negligence’ is referred – not is expressed!!!

S) 119. HHJ Cowell: Job card issued by B2, 184 27^th April 04’ leak affected leak below, Mr UK.

5^th May 2004 – Flat 3 Cromer House where leak originated B2 187

12^th May 2004 – Due B2 187 to be.

Repair – wall tiling 14^th Oct 2004 tiling would cure it.

Mr UK Jan 2005 – Attended 24^th Jan – pinhole –

31^st Jan – looked at stack pipe after ascertaining no leak from flat 3 – before leak

Repaired 7ft rubber plant during artist A.R.s show, should not been seen – pinhole promptly remedied by the defendants with jubilee clips after casing removed

Jan – 3^rd Feb 2005 –

One item in insurance claim-

Claimants ‘crack discovered’ 24^th Jan – remained 3^rd Feb fixed –

Guilds defendants not in breach of ‘duty’ flat above bonafide source lay there.

T) 121. HHJ Cowell: Fortunately the defendants had insured against physical damage –

U) 139. HHJ Cowell: Oct 2005 – Insurance paid Jan 2006.

Judgment – Sufficient alerting of Mr UK

(1)          Only 2 months before 104 stack

(2)          Leak flat 1 if ever there was one cured

(3)          Despite evidence that he didn’t smell anything – sufficient was a smell & photos state of premises 15^th April support evidence there must have been smell even if Mr UK did not smell it.

Jaqui Greene – impressed on Mr UK urgent!

V) 141. HHJ Cowell: Pencil – dry out!

Ms Flores it is suggested is ‘Prone to exaggeration’ – prefer Ms Bhaloo on this

W) 143. HHJ Cowell: Ms Flores should have asked about the smell –

Mr UK should have raised an order renewal of the casing and…..

Had that been done by the end of that working week a delay of 3 weeks would have been avoided, claimants claim is good for that 3 weeks.

X) 145. HHJ Cowell: Difficult to determine: Means of knowledge was with Mr UK 1^st/4^th April

Do not find the defendant is not in breach of duty by the leaking – In my Judgment time that it took – Information location of stack known to defendant.

No breach of ‘duty’ on insurances

Y) 147. Next event: 24^th / 27^th – Flood –

-Schedule 22 – 24 –

Insurance Paragraph 32

7 (i) (5) In breach of the leases negligence –

Sub plot: Floor tiling to floor damaged to

Particulars 29 – 32   50 (19)

D 3 ? 36

Schedule 24 -26

HHJ Cowell: Flood unforeseeable accident, Mr UK’s understanding gleaned from others, whether claimant no cause of action repairs of done very promptly. After insurers paid complaints about floor –

Z) 149. HHJ Cowell: No liability attached by defendants & because they persisted to say any more – not to go on except – 45/53 Ms Bhaloo’s submission…

10.) LUNCH BREAK… Missed part of Judgment

A1) 151. (Lunch break from 1.05pm we arrived back at 2.08pm and Judgment had already commenced in continuation without us so we don’t know yet what was said…)

HHJ Cowell: June 2008 – Cause of action….

Reply breach of lease –

Negligence –

Building regulations –

Pavement not demised to the claimants

Possession and control defendants

Difficult to argue in Guilds case cannot apply – Having knowledge should repair it-

B1) 153. HHJ Cowell: In its very nature may leak, unlike pipe –

If pipe does leak clearly alerts occupier to repair it –

Degree & smell – jubilee clips.

But because a tenant could so readily reach the pavement lights – Tenant could easily mitigate its damage.

C1) 155. HHJ Cowell: Tenant is more aware –

Short answer by defendants – Caveat Lessee

D1) 157. HHJ Cowell: Defect – 8^th April 2004 – 106-8-

Reason I find defect there at time of grant, claimants say first time it rained – oral evidence satisfied – May 2005 – reported

E1) 159. HHJ Cowell: Response landlord not responsible –

1^st written evidence from defendant 

15^th Oct 2004 125

28^th Oct D1 126 – after she had written those emails – works been done by Kingsbury – works done 1^st Nov 2004 – oral evidence established that date though particulars of claim suggested Sept emails show after that Ms Flores accepts 1^st Nov 2004.

Defendants point about caveat lessee is correct –

If wrong about that:

The test in Guilds case ‘doubt has been expressed about the defendants responsibility’ this repair is simple in comparison to waste pipe.

F1) 161. HHJ Cowell: Claimants remedy matter later could have paid and paid later – Insurance –

No question under Guilds case –

-Not extraordinary work –

G1) 163. Oct – attempt to remedy FWA

3^rd Oct – useless material used trodden on brought into space, remedy Kingsbury 16^th Oct

H1) 165. HHJ Cowell: 3^rd Oct G1 40-44-52

G1 70-74- 16^th Oct –

B2 151-2 Email 5^th August B2 150 3^rd Aug

Claimants repeatedly phoning –

Delay – understood insurance might pay for this particular matter Jaqui called insurers 7^th Aug C4 215 19^th August – Thames Water not fault of defendant –

I1) 167. Insurance not liable to pay anything – appears reasonably clear the defendants fixed Guild principle ‘no culpable delay on part of defendants.

Defendants……………………………….

Claimants could have paid Kingsbury and argued about who paid –

Defendants not in breach – liability – Not the defendants –

J1) 169. Electricity room – June 2005 – Nov 2005

Schedule pg 27 also deals with second……

Jan – May June 08 – Reply 11 (i) (v) hint of cause of action-

Again no covenant in lease which assists the claimant but particulars never formulated.

K1) 171. HHJ Cowell: Breach of statutory duty: Typical all allegations made!

L1) 173. HHJ Cowell: Not demised –

C3 Tab 4 131/4

August 2005

Work was done by Thames Water-

“Did not know where leak came from – cannot be failing to remedy it”

M1) 177. Paragraph 31 wiring, fire panel, smoke detectors, security shutters & fire panel.

N1) 179. HHJ Cowell: No airbricks –

O1) 181. HHJ Cowell: Defendants improved fire exit –

P1) 183. HHJ Cowell: Defendants answer – caveat lessee

Q1) 185. Ventilation – Airbricks

FAIR!!!

R1) 189. HHJ Cowell: C4 246

The claimants made a claim for £280,540 from the defendants & £164,??? From the insurers for delays water damage, unable to assist…

C4 208 £400,000 – Gordon Ward –

Not provided sufficient evidence –

S1) 193. HHJ Cowell: C4 164 Plexus Law 27^th Nov 2007

Proper presentation of claim 2008

C4 133

Ultimate point stemming from that-

11.) Notes on ‘the defendant’s legal submissions’ and case laws used are as follows:

Hill and Redman’s Law of Landlord and Tenant Volume 1 A3007

Woodfall Volume 1 paragraph 15.03

Cavalier v Pope [1906] A.C. 428]

Southwark London Borough Council v Mills [2001] 1 AC 1

See also Lord Millet’s references to Spoor v Green LR 9 Ex 99 and Lyttelton Times Co Ltd v Warners Ltd 1907 AC 476

Jackson v JH Watson Property Investment Ltd [2008] 1 EGLR 33.

Baxter v Camden [2001] QB 1

Southwark v Mills

Judgements of Lord Hoffman and Lord Millet

Clerk & Lindsell on Torts, Third Supplement to 19^th edition paragraph 20-42

Dowding & Reynolds on Dilapidations paragraphs  1-07 to 1-12]

Slade LJ said in Duke of Westminster v Guild [1985] Q.B. 688:

Reger International v Tiree Ltd [2007] 1 P. & C.R. 24

Cockburn v Smith [1924] 2 K.B. 119 and Hargroves & Co v Hartopp [1905] 1 K.B. 472. In Gordon v Selico Co Ltd (supra)

Woodfall Volume 1 paragraph 13.004

Vural Ltd v Security Archives Ltd (1990) P.& C.R. 258.

11.) We also submit that all the above laws are wholly irrelevant and misleading as they relate to Landlords and Tenants Law apart from the last one which is finally in regard to insurance: Vural LTD v Security Archives Ltd (1990)

(1) D has also produced to the Court the case of Vural Ltd v Security Archives Ltd (1990) P.& C.R. 258. It should be noted that in that case the landlord deliberately dragged his feet and the case was decided in that context. In that context the landlord was found to be in breach of an implied obligation to exercise the rights conferred by the policy of insurance in such a way as to preserve the tenant’s interests. It is submitted that the most that can be implied is a duty to take reasonable steps and that there must be a correlative duty on the tenant’s part to provide necessary information etc, or alternatively, any failure on the part of the tenant suspends the landlord’s duty or prevents him being in breach.

12.) It would be nice for Ms Bhaloo to bang on and on about Jo when she has no idea of Jo’s 25 years history in children’s rights, including lobbying the House of Lords and changing the law, or for Ms Bhaloo to explain the in’s and outs of pinholes for diversion but the facts still remain that disrepair on the most outrageously enormous scale took place at the premises. Each incident was insured and the landlord in a monumental way has gone to great lengths without any costs to itself in anyway to ruin the lives of the claimants rather than admit ‘liability’ or mediate in any humane way to refund the damage and equity of the claimant.

13.) HHJ Cowell makes no mention of the dispute between the building insurers UKU building insurers and Royal And Sun Alliance ‘liability’. This is the reason why there were such delays and the claimants suffered as stated in the ‘claimant’s submissions on liability’. To shorten the story of 92 pages we will briefly explain here in just a few pages some of the evidence of the events behind the scenes that lead to the landlord’s aggressive actions to rid themselves of the claimants as neither insurers wanted to pay CHA to then pay the claimants for policy covers as UKU insurers said the landlord breached the policy cover which was an act of omission which inadvertently proves our case that they were ‘liable’. However when the landlord triggered the policy for a court action with the encouragement of Anna Norrie they all three teamed up together to get rid of the claim through dragging the claimant to court and great costs and still we are here.

14). There were failures of our building insures UKU (and Royal and Sun Alliance whom they had a sharing agreement with on excess Property Owners Liability) and possibly FARR PLC the insurance broker would also be at fault since it was a long winded and serial complex matter which FARR PLC was so clearly a part of as even recent covers in 2008 that could have helped the leaseholders were not triggered by the broker with full knowledge of the facts. The insurance file D1 presented in the county court with the policy documents we received on disclosure can assist showing all policy covers. The 'submissions on liability on behalf of the claimant' file with all the 358 appendix's made references to the submissions have been given to the court of appeal for ease of reference (to save jumping from file to file) and the 'unheard case of the claimants' file (which we were asked to put into an email very unorthodox) by Judge Cowell because the case ran over the 10 days time element has too been filed at the court of appeal with an index.

15) The claimants make reference to these files and ask that you refer to them during the course of this appeal if necessary for evidence that our claim was valid under the terms of our policy well before it ever got to the stage of litigation and dirty tricks in terms of eviction.

It was an ongoing claim from 2004 that should have been resolved legitimately and under pre action protocol rules as well as in accordance with the Financial Services Authority regulations.

In experiencing excessive delays because the landlord breached the policy and not getting paid under the POL section of the policy for the liabilities of the landlord (which were undisputed by the loss adjuster Alan Hines who said in his preliminary report that he regards these claims as competent for consideration under the POL policy.

16) The other issues namely litigation fee's to recover our costs in the ‘defence of a policy holder’ (or the inaction to pay us and recover the companies losses) where they view us as the third party, due to the amounts at stake and magnitude of corruption/deceit involved having great consequences for all concerned in different ways. We believe that the commercial decision that was made to view us as the third party is wrong as the policy states we are to be ‘treated as if we had insured as a separate party’. We would seriously question if this is ethical or lawful towards a smaller party as small businesses would then have to question whether it is worth their while ever having joint cover with a landlord especially when this is exposed on our www.youthparliament.co.uk website and any other media’s as is still our right to do so in the public’s interest and the interests of small businesses falling into the same or similar trap as befell us.

17) In reference to the above files presented as evidence to you. Please note due to excessive use of these files as evidence the numbering for the Court of Appeal is placed on the right hand side of the page in the middle of the page marked P.1, P.2, etc.

18) P.3. + P.4 (from file D1/152a/152b) 'It is CHA's responsibility to ensure the commercial units are free of damage. Undue care to carry out this responsibility may result in the tenants of commercial units placing CHA on notice which would then have to be notified to CHA's (the landlord) own indemnity insurance as the tenant has the right to claim for damages, loss of business and loss of income as well as anything else they can throw at CHA. If a commercial unit suffers damage and loss they have the right to withhold their rent, Jaqui Greene CHA the landlord 15th August 2005.

19) P.15 (from file D1 301-305) Although I can see from my copy of the file that was sent to you that you just have page 302 (I am sorry for this photocopying error but have popped the rest of the pages in the post to you as evidence although the same report is in the insurance file) it is stated under the heading POLICY LIABILITY by the independent loss adjuster Alan Hines 'Apart from those claims which are for consideration by the building insurers, otherwise we regard these claims as competent for consideration under the POL policy. (A reserve of £30,000 was put on the claim in this interim report for consideration by UKU)

20) P.26 (from file D3/696) RSA took advice on policy liability and after counsel advice where it was said by counsel ‘it appears that one or other of the insurers should be dealing with the liability claim’ the RSA also put a reserve of £100,000 in 2007 on the claim as the UKU policy had the combined liability excess with RSA if there was liability excess needed. Proposal for a ‘sharing agreement’ was stated as a way forward in this email evidence, on the 11^th June 2007 by ‘Claims Manager’ Pauline Watling of FARR PLC joint building insurance broker.

21) P.27 (from file D3/710) On the 6^th July 2007 the legal representatives of RSA wrote to UKU because an obvious ‘satellite dispute’ had arisen where UKU were saying that the landlord had an ‘act of omission’ 2a    and 2b    and therefore the cover was void. The legal rep Anna Norrie of Plexus Law suggested instead of a joint approach in covering and paying out the claim that they would all join together to put the claimant to the legal route and not admit liability but force the claimant to court. This flies straight in the face of pre-action protocol and is against Jackson proposals it breaches the regulatory authority guidance and is also very aggressively putting us the policy holder unfairly to more costs when we had nothing wrong but have building problems which were out of our control. Tactic’s about ‘presenting’ a claim properly were used meaning ‘how deep are your pockets get a solicitor and fight us if you can’, dirty corruption using power and money against us the policy holders and attempting a leap to quantum without any admission or denial of liability which breaks all the rules. Also putting us to more costs with forcing us to pay for 4 years of accounts to be audited on demand from RSA with no offer of paying for that from them a policy cover when presenting a claim, so a further £2,000 for us to pay to progress the claim, dirty tactics by top legal professional Anna Norrie of Plexus Law on behalf of the now very much joint parties who were simply not wanting to pay for all their own agendas even though we were covered and their legal counsel had told them so. We accused them all of breaching pre-action protocol and they then tried to turn this around saying we were breaching it instead by not ‘presenting’ (useless word) particulars of claim properly which was ridiculous as we presented everything then that was only later used in court yet and nothing more except a further £8,500 forensic accountants report which was the same if not similar to our already paid for audited accounts yet they keep asking us to ‘present’ properly never saying what they meant and because initially they knew full well they had gone and breached the pre-action protocol wildly by not admitting or denying liability as any insurer is meant to. With absolutely no one being able to stop them (apart from the landlord morally who could just ‘admit liability’ as their insurances had told them they were in breach of the policy so were ‘liable’) in preventing further losses by the claimants because of the strangle hold of Plexus Law an aggressive law firm with no other agenda than to dance us into a legal battle as is their litigation preference from day one with big boots and deep pockets a wholly disgusting stance by all involved which should be reprimanded.

22) P.35 (from file C4 142) On 4^th Jan 2008 email from our appointed claims assessor Alan Harris of ‘Harris Claims’ one of the top loss assessor in the country addressed to Anna Norrie of Plexus Law requesting that a firm of independent chartered loss adjusters be appointed so quantum could be agreed, a mild and correct approach which would have saved costs for both parties and is in accordance with the rules and guidance of pre-action protocol. Alan Harris asked for the umpteenth time ‘Can you confirm once and for all whether policy liability has been admitted’ as is the normal procedure.

23) P.40 (from file C4 147) On the 19^th Dec 2007 Alan Harris states ‘It is for insurers to appoint independent chartered loss adjusters to meet with the writer and discuss the merit of quantum of claim presented and to adjust accordingly.’ He asks again ‘has liability has been formally repudiated.’

24) P.42 (from file C4 149 + 150) On 14^th Dec 2007 Ms Jo Flores (nee: Gavin) writes to Plexus Law Anna Norrie quoting the pre-action protocol after speaking to BIBA the British Association of Insurance Brokers and a number of other agencies, Jo Flores says ‘1.5 The overriding objective (Civil Procedure Rules that apply to all law courts rule 1.1) applies to the pre-action period. The protocol must not be used as a tactical advantage device to secure advantage for one party or to generate unnecessary costs. In lower value claims (such as those likely to proceed in the county court), the letter of claim and the response should be simple and the costs of both sides should be kept to a modest level. In all cases the costs incurred at the Protocol stage should be proportionate to the complexity of the case and the amount of money, which is at stake. The protocol does not impose a requirement on the parties to marshal and disclose all the supporting details and evidence that may ultimately be required if the case proceeds to litigation.’ Jo further adds ‘it sounds like you want us to employ expensive solicitors, at unnecessary cost, when we have one of the best loss assessors in the country that understands FSA rules. Details in ‘presenting’ our claim ‘properly’ are being asked for but not ‘specified’ yet we have presented all we know. We have been in contact with you since July 2006. You are enticing us into a legal battle. Other avenues have not been used yet like the Housing Minister, the FSA and the Secretary of State. We look forward to settling the matter without recourse to litigation. Jo the copies and pastes the rules that should be followed which are: ‘The general aim of this protocol is to ensure that before court proceedings commence: (i) the claimants and the defendant have provided sufficient information for each party to know the nature of the others case; (ii) each party has had the opportunity to consider the other’s case, and to accept or reject all or any part of the case made against him at the earliest possible stage; (iii) there is more pre-action contact between the parties; (iv) better and earlier exchange of information occurs; (v) there is better pre-action investigation by the parties; (vi) the parties have met formally on at least one occasion with a view to – defining and agreeing the issues between them; and – exploring possible ways by which the claim may be resolved; (vii) the parties are in a position where they may be able to settle cases early and fairly without recourse to litigation; and (viii) proceedings will be conducted efficiently if litigation does become necessary.’

25) P.46 (from file C4/90-91) Email dated Sept 2008 from the claimants to Alan Harris, which graphically explains in a lot of detail the events that have occurred in recent months. The claimants have worked tirelessly putting together the required information regarding the audited accounts to go to the chartered accountant even though as a small business this time consuming work was never required. Interest on loans to stay in business and unduly enrich the landlord by still paying rent whilst not be able to trade due to defects in the building which are still not covered by the insures in an attempt to either cost us out of the claim or put us out of business making the claim disappear are now standing £30,530.67.

26) There are further leaks and a discovery that the there is no ventilation namely airbricks in the space making it breach part f building regulations rendering it an illegal venue to trade from just to put the cherry on top! Loses are stated in terms of clients enquiries at £7,500 a month for the central London venue alone ‘spaceshift..’ a contemporary multi-functional space available for hire at 106 Cromer Street, in the hub of St Pancras International business community and a request for an answer as to whether liability has been admitted or denied is asked for again some two years and two months after dealing with now both RSA and UKU insurers over the liability claim. This has now got to breach every rule in the FSA. Dirty tricks are afoot from the new landlord ‘One Housing Group’ changing the dates of two different shops rents to be paid on the same date suddenly making an eviction attempt all for one and one for all (three weeks later they ceased both shops on the same day an impossible tactic without this rent date change), to the claim for the floor is being ignored by UKU and OHG are trying to double our rent if we don’t pay £5,000 for it an ‘improper inducement’ to fix it ourselves with the local councillor and later as our witness in the county court as the local Mayor trying his best to mediate with CHA over the floor situation and stop the improper rent increase, to a section 25 being issued doubling the rent anyway whether we paid for the floor an insured risk or not, to the ‘cessor of rent clause’ in the lease being ignored, to Steeles Law some local solicitors who we met at one of our business events and who befriended us as victims of a bad situation and later turn out to be the God Parents of the other sides solicitors and over charge us £7,000 for one letter to the landlord asking for ‘cessor of rent’, so one is not knowing who to trust and there is an air of aggression by all concerned to get us out of those shops to conceal the recent evidence of the part f breach of building regulations which is a massive building error the landlord will be very aware is yet keep denying it and trying to palm it off on health and safety our problem which clearly it isn’t and they also have three insurance covers for it but won’t admit it because they knew from the start so that is fraud and passing off the premises as A3 when an animal is not allowed to be there legally and though this document does not state this to eventual ‘trespass’ when the rent was paid but they said they maybe lost the cheque as a lot of cheques had gone missing lately said Clarence in the finance department when we phoned upon being trespassed against. These people at the time who are all clearly collaborating against us are trying any trick in the book to get rid of us and all correspondence shows the collaboration directed by the UKU and the RSA and FARR PLC and all their joint legal reps and PR guru’s with the landlord directed like a lamb and following advice given very willingly with no conscience for the effects on us a small business with big ambitions for an independent Youth Parliament economy.

27) P.48 (from file D3/831) An email 5^th June 2008 from FARR PLC stating as far along as 5 months after the floor damage that UKU still needed certain information on the floor when the landlord and FARR PLC and UKU had already been given two quotes from us the policy holders to repair the floor since Jan 2008. This claim was to simply process a ‘current’ material damage claim of consequential damage from flooding where the floor has peeled up, with mould growth and the underneath was damp. This is a simple well-known effect that can occur later after a flood, which had already been subject to an loss adjusters assessment with the original flooding so it should’ve been a straight forward claim. Matthew Greenhalgh of FARR PLC say’s he can’t find any response from Monique Jamera of the landlord regarding photo’s taken in Jan 2008 by a the landlords surveyor Jim Gorman who claims later in court he’s lost them. that Matthew has asked Monique for this in the May 13^th email where he also stated that ‘if the floor pre-dates the tenant’s residence I shall happily add the detail to the material losses and arrange for an adjuster.’ So why on earth was this being dragged out when we could not trade but were paying rent? Monique had clearly stated too on the 13^th May that all info on the floor had already been sent so why delays and why on earth were they adding a current ‘material damage’ claim to the ‘liability’ claim when this was a current issue preventing trading which was easily resolved. Monique even asks Matthew can he put it as a new claim with Zurich as they CHA/OHG have left UKU as an insurer and all the problems associated with them not paying out behind them anyway and even threatened to sue them which they quickly backed down from when some dodgy email was sent back asking them to re-think their actions or they would be made to through influences!!

28) Another email still on 5^th June from the landlords rep Monique Jamera to the FARR PLC rep Matthew Greenhalgh asking that the claim be treated fairly and to not lump it into the ongoing liability saga. This just goes to show that the UKU were being deliberately unhelpful with far reaching consequences yet to occur as a result of their inaction on the floor and inaction on the ‘cessor of rent’ clause of which both would serve very nicely to try to drive the Scarlet Maguire gallery at 104 Cromer Street WC1 out of their shops and which ever way you look at it the delays were vindictive UKU being very aware yet dragging their feet, some might say deliberately because of the ‘liability’ claim outstanding.

Another email 4^th June 08’ show’s a cosy relationship between FARR PLC and the landlord where Monique tells Matthew she has taken his advice and is forwarding all our emails to him and he to UKU obviously as a condition of the policy since they have clearly already made their camps against us before any litigation or mediation or negotiation which flies in the face of us ‘being treated as if we had insured separately’. The ‘audited accounts’ tactic from Anna Norrie which involved month’s of work left them all for a short while pointing the finger now at us saying we have still not provided the information requested (meaning the £2,000 audit) Monique’s familiarity with the broker who is gathering info for UKU is so apparently and not professional or impartial, she say’s in an email referring to us the policy holders and victims of these building fiasco’s “I’m losing my patience with her” and it’s not the first of this kind of familiarity between them they say, ‘these people’ send ;-) with covert meanings on tactic’s and correspondence which have been planned at other ‘without prejudice’ meetings between the lot of them. It was like being up against a mob. We just wanted our floor fixed!

29) P.85 (from file C1/326) Email 12^th Dec 2005 from Alan Hines of QuestGates (supposedly independent but the landlords surveyor would in court drop him in it as to the fact that in the absence of witness statements from the landlord he wrote them for the landlord himself, he was instructed by FARR PLC to independently investigate our claim as policy holder and claimant. The end paragraph on this page demonstrates we were the policy holder in our own right except we were called a ‘noted interest’ and had to ‘notify’ the landlord before they processed the claims as in our lease we were asked and did pay a policy excess of £100 in respect of each and every incident which is only ever asked for by a legitimate policy holder who is a leaseholder of the landlord’s conditional freehold with Camden.

30) P.86 (from file D1/257) 14^th Oct 2005 email from FARR PLC to us the policy holder that the ceiling repair estimate is over £5,000 (which is the ‘material damage’ ceiling replacement not the ‘liability’ claim but it wasn’t over £5,000 anyway) so a loss adjuster will have to be appointed for the repair and the ‘liability’ claim jointly but no ‘cessor of rent’ is offered to us the claimants and the repair is not carried out by the landlord to mitigate our losses even though they have the means, as set out in a clause in the leases but has to be done by ourselves to mitigate further losses (ceiling £3,000) because of excessive delays in the insurers paying out of 9 months on yet another straight forward insured ‘material damage’ claim. To add to our problems ‘liability’ was fast becoming a joint claim against the landlord’s ‘liability’ in being slow and now the insurers too we thought back then but since we did not known what was going on in the background in that the landlord was causing the delays because they had been told they voided the policy solicitors would tell us later that this was a claim against the landlord and the insurers could be looked at later if FSA regulations had been breached. We were a small business and we were not made of money. Please note the ‘liability’ claim would not be entertained unless POL (Property Owners Liability meaning fault/liability of the owner) policy cover was in place, which it was, it was a policy cover. Tushar Shar financial controller of the landlord in writing to Karen Brett of FARR PLC smacks of collusion when he says in his first ever email over the claim ‘I’m not sure how you want to PLAY this claim’ (P.146 from file D1/154) showing the landlord, the broker and UKU were definitely partisan in all actions from then on in as if they insured only the one party. The claim is still outstanding as set out in the terms of our cover and are not subject to ‘landlords and tenants law’ as we still held legitimate cover and still do, as set out in our premium contribution towards the building insurance duly paid of course as was required as part of the contract in our leases in paying for building insurance of the landlords choosing and illegal for us to get another building insurer as was required of us contractually (in the unlikely event to cover some snags if this building 17 million pound new build from public funds had any problems.) The building insurance may have ‘defended’ the ‘forfeiture’ claim of the landlord in court  (which seems weird to us as the building insurers don’t seem to have a cover to do that or the two injunctions actions once we’d been broken into the second time we obtained on the same day and successfully held for two years by the claimants at the High Court because when even the High Court Judge didn’t understand the forfeiture since proof of payment of rent was shown and the Judge ordered that all the disrepair issues and harassment which we claimed had lead to this sudden appearance in the court. We were defending an action of trespass and supposed forfeiture in what was an outstanding and ongoing ‘liability’ claim as well as the outstanding ‘material damage’ claims (even during the court case which requests were again simply ignored and the damage never fixed despite practically begging them through the solicitors to fix the floor and air bricks) so forfeiture which is what the insurers were ultimately defending has nothing to do with disrepair being a cause of action it was just consequential to the trespass and needed airing before a decision could be made on trespass v’s forfeiture! Just because a landlord attempts to defence themselves on ‘caveat emptor’ which means ‘buyer beware’ or ‘you can let a tumbled down house’ (extraordinary defence for a public body I might add) or put themselves as a neighbouring occupier some sort of trying to get out of it clause this bears no relation to our building insurance policy cover it just happens to hi-light the same issues but against the landlords action of confiscating our shops illegally with full refurbishment unduly enriching themselves. This ‘liability’ matter is still very much outstanding. The insurers have all fought for the landlord on a ‘fictious’ (apparently the landlord lost the £6,000 rent cheque form us and broke in!) non-payment of rent and forfeiture case, which we call ‘TRESPASS’ and that was their problem and decision to do so even though personally we can’t see why they did since we asked for the same legal defence and they didn’t cover us as a separate policy holder but that would seem to be a commercial decision they were perfectly entitled to make. I say still now this was madness of them they really should of backed us and not feared the CHA not re-insuring with them since they left them anyway even though they backed them and perhaps many housing associations left them too as these RSL’s are well known to have political influence with all the other’s  RSL’s and at least with us they’d have won on every ground even morally if they have any because we have the truth which is very easy to remember, not a pack of lies, confusion and error.

31) P.136 (from file D1/149) This email dated 12^th Aug 2005 is more evidence as to delays. Email from Jaqui Coleman on behalf of Chris Natt Commercial Director of CHA to Bryn Blackaby, Buildings and John Gregory Assistant Director of CHA, “John this is not the case. It is the responsibility of CHA to maintain our properties in such a condition that they do not affect the commercial tenants in the properties below. It is not a matter for Jaqui Greene it is a matter for your department and whether it is you or Bryn who has to deal with it is not a concern of mine. What I want is this matter dealt with efficiently and without delay. Will you therefore please liaise with Bryn and ensure that our insurance company are put on notice via Tushar Shar in Finance.

32) P.139 + 140 + P.142 (from file D1/153) These sets of initial emails show confusion on behalf of the landlord, the broker and the insurers as to how to process a claim with all contradicting each other. The insurance cover states clearly that leaseholders are considered as if they had ‘insured separately’ and anyone with half a mind among them could easily read that in the policy. The process for us was to simply put the landlord on ‘notice’ since we were a mere ‘noted interest’ on a massive buildings policy and they wouldn’t have all their leaseholders contacting the insurance company so that was the procedure and we clearly did put them on ‘notice’as we screamed “LEAKS” throughout! On page 140 there is clear evidence form Jaqui Greene that business interruption and loss of income is a claim we the ‘policy holders’ can make if the ‘liability’ is the landlords through an ‘act of omission’ and we may ‘withhold our rent’ which we did NOT ever as this we checked way back with a legal advice centre was one of five things that could give grounds for repossession so they advised us always to pay. We may have argued not paying rent, we may have delayed in paying rent but we never once failed to pay.

33) P.143 + 144 (from file D1/275 + D1 276) Initial corruption on whether we were actually leaseholders at all even though we clearly are as we hold a commercial lease as assessed by our solicitors when the leases commenced, so its all perfectly legal. Paperwork in their files were later was played with probably by their solicitors to include an odd paper of two pages with no code references like the rest of the policy so clearly they had just inserted it for their own reasons which never worked anyway as it stating laughably ‘we have some commercial properties and ‘these people’ are tenants not leaseholders. It is so badly worded it was obvious that since all had dealt with us improperly they needed to try anything even to change our status now too to suit them. Perhaps that what Tushar Shar in Finance at CHA meant with ‘playing a claim’. However, this email from the insurance broker Karen Brett of FARR PLC to CHA shows inadvertently the correct procedure, “If the claim had been from a leaseholder, both ourselves and the loss adjuster would have dealt direct with the leaseholder as they would be a policy holder in their own right”

34) P.152 + 153 (from file C2/2/16 + D3/819) Evidence the vinyl flooring was a landlord’s fixture and therefore insured. The shop was re-numbered 104 when Ms Flores got the shop and not 102a as seen in this evidence where the vinyl flooring is listed as part of the publicly paid for refurbishment in 1999 and the landlord knew full well it was. Also makes the 13^th May 2008 email between Matthew and Monique as referred to above regarding the floor covering and questions over whether it is a tenants fitting clear, that it is a landlords fixture and a valid ‘material damage’ claim under the buildings insurance cover. The confusion was deliberate and cunning to not pay when we said it wasn’t our floor.

35) P.314 (from file D3/729) Reference to lack of building regulations part f approval yet another policy cover under the buildings policy which we had claimed for back in 2005 under ‘theft’ as well as the security shutters and since the CHA gave the money away to the previous leaseholder apparently so they knew very well about the ventilation because the previous leaseholders who got ripped off by their builders told them and that is why they could not let the place because it was illegal to trade from.

36) Mediation was the last thing on the landlords or their insurers minds or fairness and morals.

There were policy covers that were in place as seen in the D1 insurance file:

As a leaseholder who paid a specific 'building insurance premium' (a separate and distinct bill with Excesses which were always paid for by us the lessee which would not be allowed if we were not a distinct building insurance policy holder and would breach the terms of our lease), we were an 'insured' party a covenanted in the leases with the landlords lease contract all covers therefore apply to us as if we were insured as a separate policy.

There are a number of reference points that I will as a result of the ‘Insurance File’ D1 given to the County Court draw to your attention to:

Page 5. Commercial Property - Shops - In connection with the Business of the policyholder

Page 6. Full Rebuilding Costs - including the cost of complying with local authority and or other statutory requirements

Page 7 Property insured (Commercial Property where required) The terms of the policy apply separately to each property as though each had been insured by a separate policy.

Page 9 If the property is made inhabitable by any cause insured We will pay the: Rent, Reasonable additional costs of comparable accommodation incurred by the policy holder

Page 12 Search and Trace - locating the source of damage to the property insured caused by escape of water.

Page 13 We will pay for cost of repairing damaged parts including the cost of complying with building regulations.

If property insured has not been kept in a good state of repair we will pay for cost of repair or replacement

Page 15 We will not pay for Loss or damage resulting from Faulty Workmanship, defective design

Page 18 POL All of this page especially the legal title and 7 years which leaves claim open

Page 19 Defective Premises. Any liability under paragraph 1b in respect of which policy holder lessee is entitled to indemnify from any other source (HAPM insurance for structural defects)

We will also pay defence costs and other expenses incurred

Page 20 Denial of access (fire escapes and electricity cupboard) This policy extends to include any claim resulting from interruption of or interference with the business in consequence of accidental loss destruction or damage to any property in the vicinity of the insured premises which prevents or hinders the use of or access to the insured premises whether the insured premises or property in it is damaged or not.

CROSS LIABILITY CLAUSE

If more than one policyholder is named in the schedule each policy holder so named shall be considered as a separate and distinct entity and cover shall be construed as applying to each policy holder as though each had been insured separately

Page 20 Notice of Interests - The interest of leaseholder is noted

Page 21Conditions which apply to the whole policy 1. 2. 3. 5. 8. (For the avoidance of doubt as to whether we are a policy holder) the Company agrees to accept the designation under which such property has been entered in the policy holders books.

Page 26 Notify us immediately

We may take over and conduct in the name of the policyholder exclusive control in settlement of any claim

We may also start legal action/proceedings

Fraud benefits thereunder shall be fortified

Page 27 Policyholder will not be prejudice by the actions of leaseholders (same applies)

Subrogation All neccessary steps for enforcing rights (did this mean possession as dates for rent payment were changed to repossess both shops on same day)

Page 41 Combined Liability - 2a Legal liability for damages and costs in respect of Property damage, Nuisance, Trespass or interfrence with right of AIR

Page 42 6. Excess POL Principle Extensions Compensation for court attendance £500 per day for directors which we were

Page 43 Warranties/Conditions Fire Certificate is to be kept in force for any premises. There are none.

Page 44. The Business Commercial Properties & leasholders each that deem to be noted

Page 92 Insured Interest 1. property 2. Business Interruption loss of rent and/ or alternative accommodation 2005/2006

Page 102 Commercial Property Shops which we have been notified

Contents

Page 105 We will not pay for wear and tear or damage caused by the policyholder or their employees, we will pay for loss or damage caused by escape of water

Page 107 This section provides cover for accidental damage for which you are legally responsible to pipes

Page 109 Search and Trace caused by escape of water

Page 111 Contents paid for in water escaping

Page 130 2005 paid the premium (or our part)

Page 157 RSA combined liability Insured associated companies lodged with the company (noted interest lodged)

Page 158 Section 6 Excess POL Primary Policy is UKU

Page 162 Combined Liability Insurance - Schedule which forms an integral part of the policy

Shall be considered one document

Page 164 Irrespective of the number of Persons Entitled to Indemnity under this policy shall be treated as one party or legal entity so that there will be only one single contract of insurance between the company as one party and all the persons entitled to indemnity as the other party

Page 166 General Conditions 2a maintain all buildings. b. any defect or danger to be made good 3. Every letter in connection with circumstance forwarded to company. Written notice given to Company. Company has right to defend, settle or prosecute any claim in the name of the insured.

Page 168 Business shall mean that which is in the specific schedule

Page 170 Attending court as a witness daily rate £500

Page 171 Public Liability 1 C) Nuisance - Trespass - Interference with Easement right of Air

other than legal liability for damages which result from a deliberate act or omission of the insured or natural consequence of ordinary conduct

Page 174 Extensions to Section 2a 1. Cross Liabilities If the insured compromises more than one party the company will provide indemnity to each in the same manner and to the same extent as if a separate Policy had been issued to each

2. Compensation for court attendance per day Directors £500

Page 179 A) Legal costs and other expenses B) Costs awarded against the insured Part B) 1. The landlord not covered 2. Same.

Page 180 The company shall pass notification to First Assist Group LTD they did not.

Page 183. Section 5 JCT The company will indemnify the insured parties in respect of any expense liability loss claim or proceeding, sustain by reason of damage to property, or by reasons of carrying out works. 1. Provided that; the insured parties contribution will be payable before the company is made liable 2. pay all costs in defence, investigation or settlement

Exclusions to section 5 1. A. Caused by the neglect omission or default of the contractor (landlord not covered as breached terms on all counts as proved by notice)

Page 184 Extension to section 5 A) Insured parties indemnified by reason of damage to any property happening during period of insurance B) Pay all costs in Defence or Investigation or settlement of claims

If the policy is not renewed the period of insurance under JCT shall extend to the completion date including maintenance or defects (floor)

Page 185 Conditions applicable to Section 5 (regardless of insured's contributions)

the defence or settlement of any claim to prosecute any claim in the name of the insured parties singly or jointly

Page 186 1. Excess POL. in accordance with the terms of the Primary Policy, which shall run concurrently with this policy 3. in addition where the primary policy provides. Provided that; in the event of the underlying insurers exercising a right under their policies to pay the limit of Indemnity, the company will provide indemnity for costs and expenses for which underlying insurers would have been liable had they not exercised that right B) in the event of total exhaustion continue this policy in force as the Primary insurance subject to the terms of this policy

Page 190. Limit of Indemnity shall be the maximum amount payable by the company in the circumstances stated in the schedule or elsewhere in this policy irrespective of the number of persons entitled to indemnity under this policy in respect of any insured event or during any period of insurance.

all persons entitled to indemnify under this policy shall be treated as one party or legal entity so that there will be only a single contract of insurance between the company as one party and all the persons Entitled to indemnify as the other party.

Page 192 General Conditions 2 A) and B) and 3 all breached by the landlord (3rd Party).

Page 193 Persons entitled to indemnity shall mean 1. A) The Insured 6) Business shall mean that which is specified in the schedule and conducted solely from premises in Great Britain and shall include C) fire and security and security services (security shutters and fire exit part of the claim)

Page 194. 8. Event one occurrence or series attributable to one source or original cause 9.) Insured's Contribution shall mean the amount specified in schedule which the insured agrees to pay

Page 195. The insurance provided by section 1 is on a costs inclusive basis whereby costs and expenses of the claimant and the costs and expenses (incurred by the company or with the company's written consent) of any person Entitled to Indemnify are included within the limits of indemnity stated in the schedule

Page 200. Extensions to Section 2 ( each of which is subject otherwise to the terms of this policy) 1 Cross liabilities If the insured compromises more than one party the company will provide indemnity to each in the same manner and to the same extent as if a separate policy had been issued to each.

NOT PART OF THE POLICY -

Page 211 Community also own some shops, etc which they rent out to tenants. Although Community call these people Leaseholders they are tenants of CHA - ( This needs checking badly worded derogatory and possible not written by the insurers at all so needs double checking!)

Community pays the £1000 excess and we should deal with - (same as above) We as lessee's have always paid excess on all claims.

Page 261 Zurich over 2005/2006 Part C - Business Interruption Section 2. Page 14.

Odd reference August 2002 at bottom of page - Needs clarification. Some policies are kept in existence for years or are standard.

Page 262. Insured paying the first premium the Insured will provide insurance in terms of the policy in respect of injury, loss, Damage or liabiltiy for injury or Damage as defined.

The schedule and certificates form part of and should be read in conjunction with this policy

Page 263 Consequential Loss - Loss resulting from interruption of interference with the BUSINESS carried on by the INSURED at the PREMISES in consequence of the DAMAGE to the Property used by the INSURED at the premises for the purpose of BUSINESS

Contents - Tenant's improvements, alterations and decorations.

Page 264 (d) Personal belongings of any Director, Employee, Volunteer, customer or visitor but only for an amount not exceeding £1,000 in respect of any one person

Damage Material loss or damage

Insurer Zurich Insurance Company

Premises The premises specified in the schedule owned and/or occupied by the INSURED for the purposes of BUSINESS

Page 266 Each part of this policy is declared to be a separate contract

Warranties Non-compliance with any such warranty insofar as it increases the risk of Damage will be a bar to any claim

Page 267 Claims procedure (a) Action by the Insured. On happening of any event which could give rise to a claim or on receiving verbal or written notice of any claim the Insured will: as soon as possible give notice to the INSURER (b) Rights of the Insurer. The Insurer may take over in the name of and behalf of the Insured the absolute conduct and control of all negotiations and proceedings (c) Subrogation The Insurer may take legal proceedings in the name of the Insured - for its own benefit any right of recovery of the Insured against other party and this condition will be evidence of the Insurer's right so to do whether before or after the Insured has received an indemnity.

Page 270 Part A Material Damage Section Definitions Damage Accidental Damage by any of the Insured  perils specified in the schedule

Page 271 Section 2 Cover In the event of Damage to the Property insured specified in the schedule and occurring at the Premises during the period of insurance the Insurer will pay to the insured the value of the property at the time of the Damage or the amount of such Damage or at the insurers option replace, reinstate or repair the Property or any part of it

Rent The insurance on rent applies only whilst any part of the Building is sufficiently damaged to render it unfit for occupation.

Drains and Gutters - Cleaning and/or repairing drains and/or sewers and/gutters

Page 272 Tenants Subrogation Waiver - (b) the tenant contributes to the cost of insuring the buildings against the peril which caused the damage

Trace and Access In the event of Damage arising following the escape of water this insurance is extended in addition to the Sum insured to pay costs incurred in locating the source of Damage, effecting repairs and general making good

Mortgages, Freeholders and Lessors Clause Any increase in damage resulting from an act of negligence will not prejudice the interest of the lessor

provided that such risk is without their knowledge or authority

Tradesmen may be employed to effect repairs or minor structural alterations in the building without prejudice to this insurance

Page 273 Work in Progress Section 2 (b) Existing buildings and contents including any period for maintenance or making good defects

Section 3 - Cover In the event of damage to the Property insured the Insurer will pay to the insures the value of the property at the time of Damage

Section 4 Other Persons Indemnified The Insurers agree that: (a) all interests in the insurance by this part will be vested jointly in the Insured

Page 274 - Professional Fees - The insurance by each item on Works in Progress include an amount in respect of architects, surveyors, legal and consulting fees necessarily and reasonably incurred in the reinstatement or repair of Property insured consequent upon its Damage but not for preparing any claims

Exclusions (a) (i) The insurer will not be liable for the cost of repairing or reinstating any work executed as a result of it's own defective design

which was defective

Page 275 Part C - BUSINESS INTERRUPTION section 1 Special Definitions
Annual Gross Revenue The Gross Revenue during the 12 months immediately before the date of the incident

Gross Revenue The money paid or payable to the INSURED for goods sold or for SERVICES rendered in the course of the BUSINESS at the PREMISES, excluding rent for housing premises

Incident - Damage to property used by the Insured at the premises for the purpose of BUSINESS

Indemnity Period The period during which the results of the BUSINESS are effected in consequence of the Incident, beginning with the Incident and lasting not longer than the maximum Indemnity Period specified in the Schedule + Office Buildings + Standard Gross Revenue

Notes 2. Provision will be made for the trend of the BUSINESS and for variations in or other circumstances, either before or after the date of the incident, which affect the BUSINESS or would have affected the BUSINESS had the incident not occurred, and the figures for Annual Gross Revenue and Standard Gross Revenue adjusted to represent as nearly as reasonably practicable the results which would have been obtained during the relative period after the Incident if the Incident had not happened.

Section 2 - Cover (a) Additional Expenses for the sole purpose of avoiding or diminishing the interruption of the interference with the BUSINESS

Page 276 Provided that (i) insurance in force at the time of the incident covering the interest of the Insured in the Property at the Premises against such damage

and

(ii) Payment has been made or liability admitted for such damage (or payment would have been made or liability admitted for such damage but for the proviso excluding liability for losses below a certain amount)

Alternative Trading If during the Indemnity Period goods are sold or services rendered elsewhere than the premises for the benefit of the business either by the insured or by others on behalf of the insured the money paid or payable in respect of such sales or services will be brought into accounting in arriving at the gross revenue during the indemnity period

Basis of Claim settlement - (a) in respect of Additional Expenditure (i) additional costs incurred in order effectively to continue administration and maintain services including fitting of out temporary premises, costs of removal, hiring of vehicles, plant, and machinery and incidental expenses relating thereto (ii) increased costs incurred for rent, rates, taxes, lighting, heating, cleaning and insurance due to the enforced occupation of temporary premises (iii) legal, clerical and other charges incurred in the replacement or restoration of deeds, plans, specifications, documents, books of account, card indices and other office records less any sum saved during the indemnity period in the insured's normal expenditure which may have been affected in consequence of the incident

(b) (ii) In respect of an increase in Costs of Working: the additional expenditure incurred solely to avoid or diminish the reduction in Gross Revenue which but for that expenditure would have taken place during the Indemnity Period in Consequence of the Incident, provided that such additional expenditure: (1) is necessarily and reasonably incurred

Page 277 Professional Accounts - Any detail contained in the Insured's business books required by the Insurer for the for the purposes of investigating or verifying any claim may be produced by professional accountants if at any time they are regularly acting as such for the Insured and their report will be prima facie evidence of the details to which such reports relates. Te Insurer will pay to the insured the reasonable charges payable to its professional accountants for producing such evidence and reporting to the Insurer and the Insured that such details are the liability of the insurer as specified

Section 4 - Special Circumstances
1. Any loss as insured by this Part resulting from interruption of or interference with the Business in consequence of the Damage to the Property at the under noted situation within the territorial  limits will be deemed to be an incident: (a) any generating station or sub-station of any public electricity supply undertaking (b) any land-based premises of any public gas supply undertaking or any natural gas producer linked directly to them (c) any water works and pumping station of any public water supply undertaking (d) any land based premises of any public telecommunications undertaking from which the insured obtained electricity, gas, water or telecommunications services (e) in the vicinity of the Premises which prevents or hinders, the use of or access to the Premises excluding any Damage to the Property of any supply undertaking to the prevents or hinders the supply of services by an electricity, gas, water or telecommunications undertaking to the premises
2. The insurance by this part is extended to include loss resulting from interruption of or interference with the BUSINESS carried on by the insured at the Office Buildings in consequence of: (a) (ii) any discovery of an organism at the office buildings likely to result in the occurrence of a Notifiable Disease (iii) any occurrence of a Notifiable Disease within a radius of 25 miles of the Office Buildings and the discovery of vermin or pests at the office buildings (c) any accident causing defects in the drains or other sanitary arrangements at the Office buildings on the order or advice of a competent local authority (Environmental Health)

Page 278 Special Provisions: (b) for the purposes of this Special Extension:  (i) Indemnity Period will mean the period during which the results of the BUSINESS are affected in consequence of the occurrence, discovery or accident, beginning with the date from which the restrictions on the Office Buildings are applied (or in the case of (d) above the date of the occurrence) and ending not later than the Maximum Indemnity Period thereafter. Maximum Indemnity Period will mean three months.

Page 279 Insured Perils 2. (a) Damage or Consequential loss arising from (i) confiscation, requition or destruction by order of the government or any public authority (ii) cessation of work (c) Consequential Loss arising from deliberate erasure, loss, distortion or corruption of information on computer systems or other records, programs or software 6. Escape of water from any tank, apparatus or pipe 10. Loss of rent/temporary accommodation 11. Accidental damage to supply pipes and cables. Accidental damage to fuel oil supply pipes, water and gas supply pipes, sewerage and drainage pipes.

Page 280 15. Theft or attempted theft, other than: (c) involving parting with title and possession of any Property insured if induced to do so by fraud, trick or false pretence

The Insurer will also indemnify the Insured for the cost of: (i) repair of Damage to Buildings caused by theft or attempted theft of the PROPERTY insured where the Insured is legally responsible for the cost of repairing such Damage

16. Subsidence or Ground Heave of any part of the site on which the property stands or landslip excluding: (b) Damage or Consequential loss caused by or consisting of: (iv) defective design or workmanship or the use of defective materials (c) Damage or consequential loss which originated prior to the inception of this cover (d) Damage or consequential loss resulting from (i) demolition, construction, structural alteration or repair of any Property

17. Accidental Damage being all risks of Damage to the Property insured excluding: (b) Damage or Consequential loss caused by latent defect, gradual deterioration, wear and tear, its own faulty or defective design or materials but this will not exclude subsequent Damage or Consequential Loss which itself results from the cause not otherwise excluded

Page 282 Part D 'All Risks' Section 1 - Cover In the event of accidental Damage to the Property insured specified in the schedule arising during the Period of Insurance within the territorial limits the Insurer will pay to the insured the value of the Property at the time of the Damage or any part of it provided that the liability of the Insurer will not exceed: (a) in the whole the total sum insured.

Section 2. Exclusions The insurer will not be liable for: (b) DAMAGE caused by: (i) latent defect

Page 284 Additional Cover - 1. European Community Legislation, or 2. Building or other Regulations or Bye-Laws of any public authority (thereafter referred to as "the stipulations") in respect of Damage to Property insured - Undamaged portions Excluding: (a) the cost incurred in complying with the stipulations: (i) in respect of Damage occurring prior to the granting of cover by this extension (iii) under which notice has been served upon the insured prior to the happening of the Damage (iv) for which there is an existing requirement which has to be implemented within a given period (b) the additional cost that would have been required to make good the Property lost, distroyed or damaged to a condition equal to its condition when new had the necessity to comply with the stipulation not arisen (c) the amount of any charge or assessment arising out of capital appreciation which may be payable in respect of the Property or by the owner thereof by reason of compliance with the stipulations

Special Conditions 1. The work of reinstatement must be commenced and carried out without unreasonable delay and in any case must be completed within 12 months of the Damage or within further time as the insurer may allow (during the said 12 months) and may be carried out upon another site (if stipulations so necessitate) subject to the liability of the Insured under this extension not being thereby increased. 2. If the liability of the INSURED under this Part other than from this Additional Cover shall be reduced by the application of any of the terms and conditions of this part then the liability of the Insurer under this additional cover shall be reduced in like proportion. 3. The total amount recoverable under any item of this part in respect of this Additional Cover shall not exceed: (a) in respect of the loss, destroyed or damaged Property: (b) in respect of the undamaged portions of Property (other than the foundations) 15% of the total amount for which the Insurer would have been liable had the property insured at the premises where the Damage has occurred been wholly destroyed.

Page 285 Non-Invalidation This insurance will not be invalidated by any act omission or by any alteration which increases the risk of Damage without the authority or knowledge of or beyond the control of the insured, provided that immediately the insured becomes aware of the increased risk of Damage notice is given to the Insurer and any additional premium paid.

Professional Fees The Insurance by each item on Buildings and/or Contents includes an amount in respect of Architects', Surveyors', Legal and Consulting Fees necessarily and reasonably incurred in the reinstatement or repair of the Property insured consequent upon its damage but not for preparing any claim. The amount payable under each item will not exceed in total its Sum Insured.

Page 287 Special Conditions Designation For the purposes of determining where necessary the heading under which any Property is insured, it is agreed to accept the designation under which such Property has been entered in the Insured's books.

Other Interests It is agreed and understood that where the Insured so intend the interests of parties other than the Insured in this insurance are admitted, the nature of such interests to be declared in the event of loss.

Page 288 Exclusions 1. the Excess will apply to each and every loss in respect of each separate Premises. 2. Pollution or Contamination Damage to Property or Consequential Loss caused by or resulting from pollution or contamination but this will not exclude Damage or Consequential Loss not otherwise excluded, caused by (b) any of the insured perils 1-15 if insured which itself results from pollution or contamination 3. This exclusion does not apply to Damage or Consequential loss by theft if the Insured Perils 15 is specified in the schedule.

Page 289 4. (a) Damage to any Property more specifically insured by or on behalf of the insured (b) consequential loss of any kind other than loss of rent if insured.

Page 291 (c) The insurer's liability for Damage or Consequential Loss as set out in the sub-clause 2(a) above shall not exceed in respect of all losses arising out of any one occurrence and in the aggregate in any one period of Insurance the lower of either any limit of Liability or Sum insured stated in these parts or the Limits shown against the items in (i) to (iii) below (where insured by these Parts) after the application of all provisions of this Policy including any contributions by the Insured.  (ii) (1) Houses and blocks of flats including associated loss of rent £2,500,000 (2) The costs of Alternative Accommodation and Rent in respect of Buildings described in (ii) (1) above £2,500,000 (iii) (1) Business Interruption including Rent Receivable not associated with houses and block of flats £100,000 (d) For purposes of sub-clause 2(c) above if any block of flats is partly occupied for retail or other commercial purposes the limits shall apply as follows: (i) where the proportion, designated for residential use is at least 80% of its Sum Insured the above Limit(s) of £2,500,000 shall apply to the residential portion and additionally the £100,000 limit(s) specified above shall apply to the remainder

Page 292 Special Conditions 1. The liability of the Insurer for repair or restoration of Property which is only partially damaged will not exceed the amount which would have been payable had such Property been wholly destroyed. 3. Any additional amount which may be payable solely due to this Reinstatement Condition will be paid only if: (a) Reinstatement commences and proceeds without unreasonable delay 4. (b) All the terms and conditions of this Part will apply: (b) where claims are payable as if this Reinstatement Condition had not been incorporated.

Page 293 (c) When the Buildings continue to be unoccupied after 120 days

Special Definitions Declared Value the insured's assessment of the cost of reinstatement of the Property Insured arrived at in accordance with the Reinstatement provisions at the level of costs applying at the inception of each Period of Insurance (ignoring inflationary factors which may operate subsequently) together with, insofar as the insurance by the item provides, due allowances for: (a) the additional cost of reinstatement to comply with European and Public Authority requirements (b) Professional fees

Page 294 B. Event The Insurance will not be liable for the amount of any deductibles specified in the schedule in respect of the total of all losses arising from any one occurrence as ascertained after the application of all other terms and conditions of the relevant Part(s) including Average. For losses attributed separately to Insured Perils 5 or 6 an occurrence means any separte period of 72 consecutive hours during the currency of the insurance.

Page 297 Public Liability Part F - Public Liability Section 1 - Special Definitions Financial Loss Loss or Damage other than arising from Injury or Damage to Property.

Pollution and Contamination (a) All pollution or Contamination of Building's or other structures or of water or land or the atmosphere and (b) all loss or Damage or Injury directly or indirectly caused by such pollution or contamination. Products. Goods (including containers, packaging, labeling and instructions) sold, supplied, repaired, altered, treated, erected or installed by the Insured in connection with the Business

Page 298 (d) (i) in defending any claim for damages

Section 3 - Financial Loss. The Insurer will indemnify the Insured in respect all sums which the Insured may become legally liable to pay damages and claimants cost and expenses for Financial Loss arising as a result of a negligent act or accidental error or accident omission committed or alleged to have been committed, within the geographical limits, by any employee or volunteer in, or about, or in consequence of, their duties arising out of the Business occurring during the period of Insurance.

In addition the insurer will pay all costs and expenses incurred with its written consent: (i) defending a claim. Exceptions The insurer will not be liable for Financial Loss: (a) caused by the failure of the Insured to fulfil its obligations under any contract entered into with the claimant. Section 4 - Indemnity to Other Persons. The Insurer will indemnify under the terms of this Part at the Insured's request: (d) any principle for whom the insured is or has been carrying out work but only to the extent required by the contract for work (e) (1) is not entitled to indemnify from any other source

Page 343 Legal Defence (4) The Insurer will represent the Person Insured in appealing against the imposition or terms of any Statutory Notice issued under legislation affecting the Business (The Section 25 Notice and Eviction)

Section 5 Property Protection and Bodily Injury. (A) Property Protection. Insured Incident. The Insurer will negotiate for the Insured's legal rights in any civil action relating to Property which is owned by; or the responsibility of the Insured following: (1) any event which causes or could cause Damage to such Property; or (2) any Nuisance or Trespass

Page 344 Exceptions. (5) defending a person's legal right other than in defending a counter-claim (Section 25 Notice to double the rent unless we fixed the floor (an insured risk) and an improper inducement, then illegal eviction, before any emergency court action took place to get an injunction which was upheld upon the issues of disrepair being insured risks and it being ordered that that was to be dealt with in the county court proceeding which it was further ordered were to be dealt with very expediently, no rent was to be paid further by order and Quiet Enjoyment (including the fixing of outstanding repairs) was also ordered.

Page 345 Exceptions The insurer will not provide indemnity in respect of or arising from or relating to: (1) any claim relating to: (ii) a lease, licence or tenancy of land or buildings other than a dispute with a professional adviser in connection with the drafting of a lease, licence or tenancy agreement

Page 346  Debt Recovery - Insured Incident (d) the insurer has the right to select the method of enforcement, or to forgo enforcing judgement if the Insured is not satisfied that there are, or will be, sufficent assets available to satisfy judgement. Exceptions The Insurer will not provide indemnity in respect of or arising from or relating to (1) the recovery of money and interest due from another party where the other party intimates that a defence exists.

37) Finally and without meaning to sound like we are disrespecting the courts there is the issue of what is a fair trial?

26^th March 2010 particulars of claim amendments, hearing Costs were awarded to the other side’s solicitors. We had made no application to change our particulars of claim yet have paid out in total £20,000 to do so on advice/direction from the courts. The Judge who asked for them to be changed and the other side who asked for them to be changed too awards costs of £10,000 to the defendant. The Judge says he now understands our original particulars and that the issues of the building repairs were outside of our control.

June 2010 A hearing out of the blue from the other side to deal with the section 25 with over 300 pages to read when we are already up to our eyeballs. The Judge allows this because of a dubious email where Jo apparently has agreed according to the other sides solicitors an extension of six months and Jo says she did not she said it can only be sorted once the court case hears the whole story and is a pointless exercise otherwise and the other side’s solicitors now want the shop back despite the two injunctions. This is more harassment and costs.

12^th June 2010 The defendant still have not disclosed simple floor plans.

(7^th June) Disclosure in full is given to the defendant because of an official ‘application’ they made to the Judge and an ‘order’ was granted to produce it from us in 7 days every piece of financial records including very oddly and against the data protection act personal and business bank statements from every credit card or loan taken out in the past 8 years or the case now of 18 months can be struck out. This application had us working through the nights and days to prevent the case being struck out but we did it. We then put the exact same official ‘application’ in for disclosure on the 3^rd May and we didn’t even get an answer. So I went to the courts 3 weeks later to ask what is happening to my application for them to produce ‘disclosure’ since our case is on the 14^th July and I was preparing for it to act in person and I need the disclosure evidence including the compulsory HAPM (Housing Association Property Management) ‘insurance’ cover for structural defects yet another policy cover for the breach in the ‘part f building regulations’ that they the defendant still have not triggered. The 2004, 2005, 2006, 2007, 2008, 2009 and current buildings insurance documents that His Honour Judge Clarke in the High Court had asked us to write reference to, when citing defects and the insurance that cover them, floor plans proof of the location of the toilet above as to whether it was flat 2 or 3 that flooded us (as they originally had the mordacity to blame a mentally ill person above saying he’d left his bath taps on and that a ‘made up’ work of fiction social worker turned them off, when we had the man’s mother a very eminent lady as a witness who said her son was ill in hospital at the time and the carpets were dry and still are as we saw them so the floor plans were the simplest way of proving these lies from the landlord). The much needed proof of the insurance claims sent to the building insurance, with dates of when they were triggered as we knew they had broken the terms of the policy so this was crucial evidence if (as it turns out) the ‘Vural Case’ of the landlord dragging its feet was to be entertained. A long list of other disclosure crucial to the case was asked for but I won’t put that in full here as its on record but it was 24 items.  When I arrive at the court offices, the court officials simply say that the application has been on the Judges desk for two days and will be dealt with in a week. Four weeks later, being very polite still, on a Monday, I email this time, as I have been really very patient enough and on the Friday of that same week I actually got an official reply from the Judges clerk who emailed me back saying, “The Judge is on holiday and will deal with the application when he gets back” with no date as to when that was. The upshot of the ‘application’ was that it was never dealt with and disclosure was never handed over. So on the start of trial day 1, we had a quick hearing because I asked time and time again for these documents leading up to trail and the answer was a quick one ‘No’. So the trial proceeded without this evidence.

On the 8^th July 2010 just four days before trial the landlord organised mediation (with their insurers on the end of a phone we later realised). This was a hoax mediation that made no serious offer. We believed their offer of mediation entirely because we thought that the social landlord knowing that they couldn’t really carry on to take their defence of lies on this case any further, especially not in a public court that we rushed to employed a specialist counsel, QC Matt Kelly of Essex street and Lynne Brooke of Veale Wansborough, at a great cost of £10,000 for urgent preparation (and to not waste time as this was a one day mediation so all issues to be discussed needed professionals to be capable of fine tuning and presenting the claim to the other side legal team) in the days mediation. With just one weeks notice we were only to find the insurers just wanted to save the costs of the ten days trial and no more, our QC could not believe it, this was just a heart breaking trick that we fell hook, line and sinker for and to this day we don’t know why we took them seriously and wasted our time and this urgently borrowed money, distracting us also from the trial that was imminent, the pressure was a disgusting tactic which only serves to show that this is what they called pre-action mediation. We felt like idiots. However one thing came of it which was our QC who was paid to read everything gave opinion and said we have a 50/50 chance of winning. He said if the Judge digs deep enough, they will get it! He said that the reason it’s 50/50 is simply because we will be representing ourselves.

On the 11^th July 2010 the landlords solicitors put us the claimants under more pressure. They made an application to take the Scarlet Maguire gallery at 104. This hearing was to take place on the first day of trial. Normal notice of such an application would be 21 days but we had just 4 days and this was astonishingly allowed.

On the 11^th July the landlord asked could they send around a surveyor the next day to value spaceshift… at 106, this was further harassment as we still had injunctions for ‘Quiet Enjoyment’ on the premises and the psychology from them was that they were already valuing what they wanted to steal from us at court including the roughly £50,000 worth of refurbishment unduly enriching themselves off our hard work, including a £3,000 boiler with full central heating and real wood floor, glass bar, real gold leafing and bespoke wooden blinds, integrated surround sound system, which is all still at the active condensation and smelly premises that need air and they still can’t seem to let even now. Although in Nov 2011 they have even stolen our IP and advertised the spaces as serviced offices and now suddenly have client’s, which could make you laugh if it wasn’t so tragic that they’ve stolen our idea as well as the premises and advertise them with our photo’s stolen off our website www.spaceshift.co.uk a full year without a tenant it’s pathetic. Still if they are short-term lets then as long as nothing is damaged reinstatement is easier.

We had the world’s leading expert in damp Mike Parrett (who does work for the inner templar) surveyed both the premises for the courts and he stated that 106 had active condensation to the extent of a swimming pool or a brewery, the comprehensive report was never heard at the trial because Jo Flores never got to present her case in this one sided trial but it is available in the files.

The 19 volumes of case file bundles were couriered to Jo Flores at home by the landlord’s solicitor’s just days before trial. The order to the bundles had been changed and this made it nearly impossible to provide references in paperwork when and if as it turned out we would ever present our case (which never happened) and this was awful whilst questioning the witnesses. This meant working during the day representing ourselves because at night we were getting the correct references to put to the witnesses to not waste the time of the trial but we managed. Much of the files were also duplicated in the defendant’s files when they were already in the claimants prepared files and many of the key documents were now missing which HHJ Cowell did actually criticise as suspicious.

At the end of July after a ten days trial with four days in the witness box for Ms Flores with the other side putting evidence questions to her when she was not allowed her files again a defendant led unfair trial with Jo stuck in the box and was allowed only to rely on memory and even though she could remember very well this was not fair or legal as she represented the claimants and she was then told that the case had run out of time. This ridiculous situation lasting four full days and fiercely protested ever day by Jo with comments like ‘this is not bible study’ because of the slow snails pace of going through emails which we all had and never getting to the point and very often read in full to delay proceedings was allowed by the Judge so obviously this was fast becoming a one sided one-way led trial, ignoring the insurance story completely.

Ms Flores begged to be heard on many occasions and was given an afternoon only because a witness of the claimant’s from Camden’s Environmental Department Mr Dave Wagg had failed to turn up because their ‘legal department’ suddenly took advice in the lunch hour before he was arriving and he was ordered not to despite having written a witness statement. Suspicious yes but then again Camden and CHA/OHG were in business together as OHG/CHA are the preferred provider of social housing stock to be given to them with millions of pounds of grants too so it was hardly a surprise. The time slot was clearly lucky though for Jo to start putting our case into the public realm so Jo fired through our case to at least get some balance but it was not enough and no other time was allocated to the claimants with Ms Flores being told at the end of the ten days trial having raised the matter again “can you put the rest of your case in an email and I promise I’ll read it by HHJ Cowell. She had planned the case for two years, off the back of a 6 years dispute leading to unlawful eviction and that was the law handed out ‘put it into an email’ and although the Judge promised to read it he also made no reference to the email in Judgment. The Court of Appeal now have this file and the index that was sent but it is not the same as presenting it and it being defended, this is not law and this is not legal! Ms Bhaloo’s makes no mention of the email either in her submission’s and when asked in September by the Judge had she received it she even said ‘no’, though we have email evidence it was sent to her and the Judge this was just beggaring belief, the shock of this kind of behaviour became expected by the claimant’s in this expensive farce we just smiled at how bad one can be done over it was something to be seen to be believed absolutely incredible. Lawful or seen as a fair trial, NO!

The other sides QC was given three weeks to put her ‘submissions on liability on behalf of the defendant’ together and then to send this to us the claimant’s. We on the other hand were given just 10 days from the date of receiving hers. Another old trick employed with our ten days falling over two weekends and one was a bank holiday, hardly time to get counsel opinion (‘5 Paper’ Middle Temple Barrister Guy Holland took a look for £2,000 to quickly advise on law ‘Hargrove’ but that was a squeeze to get his legal opinion in the time allocated.) before being back in court for the ‘liability’ Judgment. We put our ‘submissions on liability on behalf of the claimant’ in on the 7^th Sept and Judgment was on the 9^th Sept 2010. The reason for asking for more time by email to both the Judge and the other side was this timing. Still a remarkable job was done with the 92 pages and 245 paragraphs opting for a detailed allocation of the facts agreed and disagreed which Guy said was the better approach to just do what we could re facts and not so much law as there was no time and it would be too expensive to read all the bundles and we only had £2,000 left of all the money we had already spent so that is the budget we offered him but it was better than nothing. Hargrove we now knew much more about. The giving of ‘NOTICE’! So this we showed painstakingly in our submissions.

Despite Ms Jo Flores in her own opinion making mince meat of the witnesses in court as idiots, liars and mercenaries, they tripped over themselves said all the wrong things contradicting their statements, couldn’t back up the pack of lies written for them and even admitted they hadn’t written their own statements, they showed heartlessness and sheer incompetence backed up with defiance just because they had a legal team coaching them and remarkably the Judge gave excuses for them in his judgments. At some point saying that Mr UK the surveyor and main culprit of all the troubles was ‘naïve’ because he thought that the soaking wet excrement so saturated you could take the wall down with your hands, it would ‘dry out’ and could be painted over (please see the photo’s the 9 foot area of walls are yellow and brown). The word ‘naïve’ was an extraordinary example of this bias pro-landlord judgment, for Mr UK was meant to be a so-called competent surveyor working for a public landlord and the word naïve means literally ‘showing unaffected simplicity of nature or absence of artificiality; unsophisticated; ingenuous, having or showing a lack of experience’. Why did the Judge feel to make such comments they are not points of law or even ethical they do not excuse behaviour and cannot be used in defence to make law? The Judge got an eye opener at these employees it was like a ‘carry on’ movie I saw the Judge raise his eyebrows many times at them and I was enjoying hauling them up into the court at long last to answer where they had just hid before and the fact they made such blatant fools of themselves, they couldn’t trace and repair a leak if it was in their face which it was and nor could they defend themselves so how on earth pray tell did they get so white washed as squeaky clean in the Judgement which is why the transcripts would prove this but alas.. Justice No! I couldn’t belief what I was hearing. Slapped in the face from on high! 

The Judgement was meant to be in writing we were told as the Judge said he had a pain in his leg so was in bed. Then I get a call at 10.30am saying ‘where are you the Judge is handing down Judgement, you have until 11.15am to get here’.

We arrive at 13 past 11 which is lucky and the Judge starts speaking Greek re the law stating he prefers Guild and ‘but if I’m wrong about that, Ms Bhaloo QC evidence is preferred’ so I furiously take notes. The smile grows bigger and bigger as I listen to a real miscarriage of justice, it’s like a film. The four months of shit down the wall’s gets a Mr NIAVE approach, the leaking pavement roof and large mouldy brains growing from the saturation was indeed proved that the pavement lights DID belong to the landlord (our case and proved very well with a letter from roads at Camden) which had been fiercely was denied by the defendants QC but the Judge said that because the road was ‘so easily accessible’ he gave the excuse that we the claimants could have got the public pavement fixed ourselves by paying thousands of pounds to the defendants contractors who we were not allowed to even contact (but did try to because we tried everything and got told off it in writing and forbidden to contact them again and they wouldn’t take our calls) this was the most amazingly imaginary scenario that was not even legal in itself regarding touching someone’s else’s property especially on a public path albeit belonging to the CHA. Another point is why would we ‘adopt’ the leak. That would have worked out even worse for us legally. So although we victoriously won our point, which was a relief, this was also white washed over with pure legally unaccounted for Judgment as to remedy, never put to us in court and now dropped like a brick on our heads. The goal posts were being moved surreally it really was such a laughing stock and a shame for any court to do such a thing and get away with it that was a real kicking with big boots unreal!

I stood up and asked one question with such dignity as what could you do?

I said ‘your honour did you read the claimants submissions of 92 pages and 245 paragraphs’ the Judge smiled and said ‘yesssss’ so I bowed and said, “fuck you your honour” and sat down. They all looked at each other and no one said anything, the QC you could tell wanted to say something to defend this cosy little legal family but flustered she knew better they all knew and he looked furious as he bit his lip for he knew what he had done their was no excuse for it, it was corruption but how did they manage this how did they think they would get away with the obvious this was a one way trial going through the motions and the joke was on us. The system is rotten to the core. Money making sinecures, chancery and equity eat your heart out they are as bad as the bankers. I am glad to have seen this in my lifetime but that is about it.

The costs hearing for the following Monday was rushed into and arrangements were made for this but I just could not take this corruption lying down not while it was obvious there was a need for an appeal and a stay before taking everything off us on the Monday. The hearing had to be stopped. (On a side note the circus in the court was interesting sometimes 22 of them vs. Chantal and I. Who were these people? What was so important about our case?)

So the day after I set out to appeal and to get the Judgement in writing in order to translate the Greek that had cost us this Judgement. Firstly although we were again not told this in court and when you are representing yourself you should have some guidance by the Judge who’s only ‘duty’ is to ensure a fair trial that you have to ask for ‘permission to appeal’ on the day only.

The judgement I am chasing furiously and am told that it is not to be put in writing which is then lucky for my meticulous notes except the Greek bit but I write to the Judge to ask him to approve my notes as that is what the solicitors and lawyers do and I can too because I am my legal team. So far no reply hmm!

Dear Mr Kapole, You said you would respond by 4pm. This all seems designed to pervert the course of Justice. I have drafted some common sense reasons attached as to how the Judgment was perverse. This is currently a draft only. I have solid medical grounds why I cannot attend court on Monday so the hering needs to be postponed no response is not a response. I will provide you with a hospital record of this in due course as per my telephone conversation with you at 3.30pm. I have also advised the parties of the adjournment on medical grounds. Ms Cracy has never represented us she is known to the courts as a social investor to the social enterprises I run. We do not have legal representation, I represent us, and I am ill and have followed the proper course in informing everyone of this. I would dearly like to respect the court but it would seem they as well as the landlord are not respecting me. Regards Ms Jo Flores spaceshift... in association with Scarlet Maguire Gallery 104-108 Cromer Street London WC1H 8BZ UK tel: 00 44 (0) 20 7278 4404 www.spaceshift.co.uk www.http://www.scarletmaguire.com/scarletmaguire.com

i confirm the receipt of the document.

-----Original Message-----
From: Scarlet Maguire Gallery [mailto:scarletmaguire@yahoo.com]
Sent: 13 September 2010 23:28
To: McINTYRE Lynsey; PushkarKapole
Cc: 'Michael Ireland'
Subject: RE: CHY09015 Hrg on 6 Sep 10 before HHJ Cowell

Dear Mr Kapole, I have since Friday called the courts as well as today all day and have mostly terrible trouble getting through. When I did it would appear there would be a good delay in getting the Judgment of HHJ Cowell on Thursday 9th Sept 11.15am transcribed as well as this being a costly exercise. Since we are claimants in person most of the law parts of the judgment were difficult to take down in note form with no real knowledge of these cases, spellings etc. Would you be so kind as to ask HHJ Cowell to approve my notes as correct and perhaps fill in any gaps you may see from .... this I have missed out on especially the law parts. Kind Regards Ms Flores spaceshift... in association with Scarlet Maguire Gallery 104-108 Cromer Street London WC1H 8BZ UK tel: 00 44 (0) 20 7278 4404 www.spaceshift.co.uk www.http://www.scarletmaguire.com/scarletmaguire.com --- On Mon, 6/9/10, Kapole, Pushkar <Pushkar.Kapole@hmcourts-service.gsi.gov.uk> wrote: From: Kapole, Pushkar <Pushkar.Kapole@hmcourts-service.gsi.gov.uk> Subject: RE: CHY09015 Hrg on 6 Sep 10 before HHJ Cowell To: "McINTYRE Lynsey" <LynseyMcINTYRE@bdb-law.co.uk>, "'Scarlet Maguire Gallery'" <scarletmaguire@yahoo.com> Cc: "'Michael Ireland'" <mireland@enterprisechambers.com> Date: Monday, 6 September, 2010, 15:42 Dear All Judge Cowell will give his Judgement on Thursday 9th Sept 10 at 10:30 AM Thanks

In the meanwhile I check out how to get the transcript and get told its £500+VAT per hour, so that is a lot of money we don’t have now.

I contact that QC friend of NAYPIC’s (he was the barrister who worked with Joan Leicester the first Children’s Minister in this country) who is responsible solely for the ratification of the UN Convention of the Rights of the Child if it wasn’t for him it wouldn’t have happened and I’ve known him for years and he say’s “go down there (the courts) quickly you only have 21 days to appeal and ask for ‘permission to appeal’ orally, you need permission before you can appeal. So I do what he says and I get told to fill out a form, which is given to me. Our grounds for appeal, ‘a one-sided judgement, no reference to our case or submissions in Judgment as well as a one sided trial in terms of pointing to selective evidence.

I go to the counter to hand in the form at £120 and they say it is the wrong form I have been given. So I go back to the other desk and meet the Judges Clerk again who has a smile on his face that is belittlingly smug, he say’s “you need the transcripts” knowing even with the cash that is impossible before Monday’s hearing. My words are focused though straining to be professional as time is of the essence and I have been run around between two buildings of Park Crescent where the Central London County Court is to get this done before 4pm on the Friday after taking advice urgently, I said “ it will take three weeks and cost £8,000”, he said “well we can’t do the appeal for you without the transcripts” I said “ I emailed you with my notes I have acted in person and that is what the barristers do they send their notes for approval its normal not even they get a transcript”, he said “well email me”, I said, “I did and you have not replied, you just want me to leave and the quantum (costs) hearing go ahead on Monday, when the ‘liability’ (which we just had) judgement is entirely dependant on it and I want it appealed s I just need permission and because I was not told I am asking you and have emailed.” He said, “the Judge isn’t ‘my mate’ I can’t just ask him put it in an email and we won’t do it anyway without the transcript”. I think this is getting really crazy and I’m going mad at how they know exactly how they have us, its like get rid, poor landlord, I’m exhausted and I’m going mental. I leave and left my bag, which I come back to get and a security alert has gone out as they think it's a bomb!

I get another form which was only for the quick thinking of the receptionist back in the payment office as this £120 form has to be refunded, the girl who now gets this gist and says to the other receptionist, ‘this poor girls been trying to get to appeal half the day’ tell me what other forms I can fill out. I want all this recorded somehow and am determined to stop the hearing. So I fill out a form at just £40 I make it a ‘request for permission’ and ‘an adjournment’ rather than put it in an email as I remember, only too well, the disclosure saga, where our emails don’t get answered. So this is more official, it is an application and The Judge will have that on his desk by closing time and they have to answer these simple questions in applications, there would be no excuse, well they’d be hard pushed anyway. I realise when filling out the form that if I put our submission in with the application and our notes on Judgment and my notes on the judgement which are very damming and prove the Judge did not read our submissions, plus I want to law gaps filled in so I have done all I can do now. I keep my fingers crossed for Monday.

On Monday morning the Judge admits he did not read our submissions!!!!

I believe this makes legal history.. No?

The Judge sends us all home and says he will read them today and come back with another Judgement which may vary his judgement or not.. Tomorrow!

To explain this farce much better I will attempt to show its dishonesty.

The next day the Judge states he saw our ‘legal submissions on liability’ for the first time, ‘attached’ to the application I had hurriedly put in on Friday for the request for ‘permission to appeal’. The word ‘received’ is misleading, as the submissions had been sent by email originally on the 7^th Sept two days before Judgement plus a big fuss had been made about sending them in the lead up to the Judgment of the 9^th Sept 2010 to try to gain more time to finish the claimants submissions on liability, to the Judge and the other side as you will see from the series of emails below. So either the Judge had no knowledge of the lead up emails, which again would show no fairness in this trial and judicial error as per usual or this is just a big bunch of lies that we don’t believe. We suggest the Judge of course read our submissions its just that we were quick enough and determined enough to catch him out that he made the fatal error of not referring to them once in his pro-landlord Judgement. The back-tracking and further seemly procedural role of so called ‘reading them’ and giving ‘another Judgement’ can be clearly seen for what it is, ‘digging a further hole to cover up the first corruption’. If they are going to all be corrupt they should do it well or not at all, the mistake was to admit to not reading our submissions but given that we proved it what choice did he have but to provide the elaborate EXPLANATION which I shall further address below. For ease of reference here is the emails below sent and received to and by Judge Cowell. Please note Ms Cracy explains that legal advice has been minimal, that it is she that has written the document and she apologies about the size of the document referring to its 92 pages and 245 paragraphs. Also note that each attachment is labelled and that it is then further listed and explained as to its contents, by Ms Cracy, making Judge Cowell's explanation completely implausible;

CHY09015 - Claimants' final submissions on liability7^th September 2010

Dear Mr Kapole

Please find attached our final written submissions together with a separate document (1.doc) that Ms Flores insisted in joining to them as it forms part of the overall argument on liability and can be treated as an appendix to the main submissions.

The other documents are:
- Joy Morgan letter from the Home Office that Ms Flores referred to in her open submissions but could not find
- diary pages that are referred to in these submissions but were not correctly displayed in the trial files

Please convey to His Honour Judge Cowell that in the end the advice we received from Counsel only amounts to a couple of paragraphs contained in these submissions. They have been entirely written by the Ms Cracy who apologises for the length of the document.

We confirm that we will serve these submissions on the Defendant solicitors by email in the next few minutes.

Yours sincerely

Jo Flores and Chantal Cracy

spaceshift...

in association with Scarlet Maguire Gallery

104-108 Cromer Street

London WC1H 8BZ

UK

tel: 00 44 (0) 20 7278 4404

www.spaceshift.co.uk

www.scarletmaguire.com

·  1.doc

·  Joy Morgan Youth Parliament Proposal 5th Dec 2005.doc

·  diary pages.rtf

·  road works photos gathered in word doc2.doc

· Claimants Submissions on Liability - Final.doc

Dear Ms Flores,

I cant give any advise on this. but i can only suggest that the Judge will be working on this case on Mon-Tue-Wed, so if the parties need to send anything for the Judges attention it has to be by/before Tuesday.

Thanks you

6^th September 2010

Dear HHJ Cowell, Since Oral Judgment is not be given I attach the written closing speech which I had chosen not to send as Ms Cracy has worked tirelessly in the submissions and they are extremely good and professional in my opinion but I have just changed my mind and attach the document just written. In my opinion if the D's had not insisted that Ms Chantal Cracy be added to this claim at the High Court as Ms Jo Gavin's investor almost like adding a bank then Ms Gavin would not have had the mean's to take this claim further forward financially and that was CHA's biggest mistake in Ms Gavin's opinion to drag Ms Cracy through this when it was Jo who flew immediately to the High Court upon seeing her shops had been ceased. Closing written speech by Ms Flores is now attached. Ms Cracy as acting solicitor will have our legal submissions to HHJ Cowell by 8am as she will be working through the night to put it into acceptable order for his honour. Since the D's agreed to the extension they have no case in complaining. I hope His Honour Judge Cowell finds it very reasonable considering the work involved and changes made not just by us that this is ok and lawful. Kind Regards Ms Mary Josofar Valdivieso Fortuno Flores. spaceshift... in association with Scarlet Maguire Gallery 104-108 Cromer Street London WC1H 8BZ UK tel: 00 44 (0) 20 7278 4404 www.spaceshift.co.uk www.http://www.scarletmaguire.com/scarletmaguire.com

Dear Ms Flores,

I cant give any advise on this. but i can only suggest that the Judge will be working on this case on Mon-Tue-Wed, so if the parties need to send anything for the Judges attention it has to be by/before Tuesday.

Thanks you

 

 -----Original Message-----
From: Scarlet Maguire Gallery [mailto:scarletmaguire@yahoo.com]
Sent: 02 September 2010 15:19
To: PushkarKapole
Cc: kelly@39essex.com
Subject: RE: CHY09015 Hrg on 6 Sep 10 before HHJ Cowell

Dear Mr Kapole, Please convey our sympathies to His Honour Judge Cowell. I was under the understanding from trial that it was to be an oral Judgment. Yesterday in the email when you informed us that HHJ Cowell was ill I was understanding that his Honour was unable to work on this matter. Therefore the legal professional that was helping us to understand Ms Bhaloo's arguments which we only got with a 6 working days time constraint, since there was two weekends and a bank holiday in the 10 days as opposed to the 3 weeks Ms Bhaloo who is legally trained got to write her legal submissions, found it almost impossible to get something half decent to us in this less than straight forward legal matter. We did do some work in advance but this was based on facts. We were not expecting to have so many legal points to address after reading Ms Bhaloo's submission. After 22 months in court and since there is no objection from the other side and Ms Bhaloo is not back until Monday I sincerely hope HHJ Cowell will be willing at the very least allow our legal people until Monday evening to get back to us as this is the earliest they can do. I anxiously await a reply. Kind Regards Ms Jo Flores spaceshift... in association with Scarlet Maguire Gallery 104-108 Cromer Street London WC1H 8BZ UK tel: 00 44 (0) 20 7278 4404 www.spaceshift.co.uk www.http://www.scarletmaguire.com/scarletmaguire.com

Dear All

This Morning Judge Cowell indicated that, he will prepare the Judgement at home and aim to deliver the judgement next week, probably either on wed/thur or Friday.

I will inform you all as soon as the Judge will be ready.

Thanks

-----Original Message-----
From: McINTYRE Lynsey [mailto:LynseyMcINTYRE@bdb-law.co.uk]
Sent: 02 September 2010 10:07
To: 'Scarlet Maguire Gallery'; 'Pushkar''Kapole'
Cc: 'Michael Ireland'
Subject: RE: CHY09015 Hrg on 6 Sep 10 before HHJ Cowell

Dear Ms Flores and Mr Kapole

We acknowledge receipt of Ms Flores' email and voice mail message left yesterday evening regarding the request for a further extension of time to file closing submissions. 

The decision to grant further time is ultimately one for Judge Cowell dependent on when he will be in a position to consider them and prepare his judgment on liability.    However, in the circumstances we would not oppose an extension for filing the submissions by 10am next Thursday 9 September 2010.  I am out of the office the following week (from close of business on Friday 10 September) and will need time to consider the submissions with counsel and my client before the end of the week in order to adequately prepare for the hearing.  This should give you sufficient time to obtain legal advice as necessary to finalise your submissions.

We would also point out that the timetable for filing submissions was agreed between the parties and the Judge at the conclusion of the hearing in July 2010 and Ms Bhaloo explained that you did not need to wait to receive our submissions to begin preparing your own. 

Yours sincerely

--------------------------------------------------

Lynsey McIntyre

Associate

For and on behalf of Bircham Dyson Bell LLP

50 Broadway London SW1H 0BL 

t   +44 (0)20 7783 3601

www.bdb-law.co.uk

Bircham Dyson Bell

--------------------------------------------------

---

From: Scarlet Maguire Gallery [mailto:scarletmaguire@yahoo.com]
Sent: 01 September 2010 17:18
To: Pushkar''Kapole; McINTYRE Lynsey
Cc: 'Michael Ireland'
Subject: RE: CHY09015 Hrg on 6 Sep 10 before HHJ Cowell

Dear Ms McIntyre, Many thanks for agreeing the extension. We will be applying for a further extension of another few days given the fact that HHJ Cowell is ill so cannot read the papers. Understandably we have been pushed to the wire with just 4 working days since Ms Bhaloo's legal submission on Friday 20th August 2010 falling over two weekends including a bank holiday with legal advice then being much harder to obtain due to the time constraints. I do hope we can further agree that another week will not affect the timing for all concerned but will put us in a much better position to present legal submissions. I therefore propose we could agree to Friday 10th Sept at 4pm as the deadline? Many Thanks Kind Regards Jo Flores spaceshift... in association with Scarlet Maguire Gallery 104-108 Cromer Street London WC1H 8BZ UK tel: 00 44 (0) 20 7278 4404 www.spaceshift.co.uk www.http://www.scarletmaguire.com/scarletmaguire.com --- On Wed, 1/9/10, McINTYRE Lynsey <LynseyMcINTYRE@bdb-law.co.uk> wrote: From: McINTYRE Lynsey <LynseyMcINTYRE@bdb-law.co.uk> Subject: RE: CHY09015 Hrg on 6 Sep 10 before HHJ Cowell To: "'Kapole, Pushkar'" <Pushkar.Kapole@hmcourts-service.gsi.gov.uk> Cc: "'scarletmaguire@yahoo.com'" <scarletmaguire@yahoo.com>, "'Michael Ireland'" <mireland@enterprisechambers.com> Date: Wednesday, 1 September, 2010, 14:03 Dear Mr Kapole We confirm on behalf of the Defendant that we have no objection to the Claimants' proposal to file/serve their legal submissions by 4pm tomorrow (Thursday 2 September). Yours sincerely -------------------------------------------------- Lynsey McIntyre Associate For and on behalf of Bircham Dyson Bell LLP 50 Broadway London SW1H 0BL  t   +44 (0)20 7783 3601 www.bdb-law.co.uk Bircham Dyson Bell -------------------------------------------------- From: Scarlet Maguire Gallery [mailto:scarletmaguire@yahoo.com] Sent: 01 September 2010 13:20 To: PushkarKapole Cc: Enterprise London Subject: Re: CHY09015 Hrg on 6 Sep 10 before HHJ Cowell Dear Mr Kapole & Ms Bhaloo, That is fine with us. Can we then on agreement put in our legal submission in tomorrow at 4pm instead as there is still some tidying up to do to make it read perfect? Please can you let me know asap. Jo spaceshift... in association with Scarlet Maguire Gallery 104-108 Cromer Street London WC1H 8BZ UK tel: 00 44 (0) 20 7278 4404 www.spaceshift.co.uk www.scarletmaguire.com --- On Wed, 1/9/10, Kapole, Pushkar <Pushkar.Kapole@hmcourts-service.gsi.gov.uk> wrote: From: Kapole, Pushkar <Pushkar.Kapole@hmcourts-service.gsi.gov.uk> Subject: CHY09015 Hrg on 6 Sep 10 before HHJ Cowell To: "Scarlet Maguire Gallery" <scarletmaguire@yahoo.com>, london@enterprisechambers.com Date: Wednesday, 1 September, 2010, 10:19 Dear Ms Flores and Ms Bhaloo I have to adjourn the hearing listed on Monday 6th September; as sadly Judge Cowell is on leave for Medical reasons. He is having pain in his leg and consequently having great difficulty in walking. The Judge has indicated that he will hear the case on 20th September 10 as per scheduled including hearing listed for 6th September. I would like to apologise for inconvenience caused. Thank you -----Original Message----- From: Scarlet Maguire Gallery [mailto:scarletmaguire@yahoo.com] Sent: 26 July 2010 05:50 To: PushkarKapole Cc: london@enterprisechambers.com Subject: CHY09015 Dear HHJ Cowell & Ms Baloo, Please see attached. Kind Regards Ms Jo Flores. spaceshift... in association with Scarlet Maguire Gallery 104-108 Cromer Street London WC1H 8BZ UK tel: 00 44 (0) 20 7278 4404 www.spaceshift.co.uk www.scarletmaguire.com

The 1^st, 2^nd, 3rd and 4th documents the Judge refers to that he ‘did’ look at in his verbose ‘explanation’ were in the same email, why would anyone ignore the 5^th attachment in an email headed ‘Final Claimants Submissions on Liability’. “In all” the Judge states “5 attachments were sent to me on the 7^th Sept” and claims that he “thought the last attachment looked the same as the defendants submissions”.

Lets look at this ‘claim’ and ‘EXPLANATION’ further and try to picture how a judicial error of such magnitude in this already two years long and costly case, with two highly refurbished 2800sq ft Central London businesses at stake, to be lost within hours if the Judgement were to be the final on ‘liability’. The damming consequences legally setting the grounds for grand theft of equity and ruination on the then soon to be ‘highly dubious’ grounds of ‘Woodfall’ and ‘forfeiture’ kicking in for the final boot on the costs day with all things ‘tied up’, to dismiss our case of ‘theft’ and ‘trespass’ due to disrepair and failure to remedy and/or make insurance claims as set out in the ‘contractual’ leases of 104-106-108 Cromer Street, London WC1.

The judge copies out the defendant’s submissions page and our submissions page to show his point. However He doesn’t show this, which is on the first page of each, which I think one will see is remarkably different;

_____________________________________________________________________________________

SUBMISSIONS ON LIABILITY ON BEHALF OF DEFENDANT

_____________________________________________________________________________________

SUBMISSIONS ON LIABILITY ON BEHALF OF CLAIMANTS

Showing what was written in point 1 and 2 as justification of his mistake of it being identical, in the Judges ‘EXPLANATION’ he writes wrote pointing to 1 and 2 referring to the addresses of the shops as is normal for both parties to say and by the very nature of it being the addresses they would be identical wouldn’t they.

Further point 3 on just page 2 of the 92 pages so not far to read if one is confused. It says;

3. The submissions made on behalf of D were served on the Cs prior to the filing of their own submissions. As a consequence the Cs have endeavoured to follow a similar order to D’s submissions. Specific reference to the submissions made on behalf of D has been included in Cs submissions as and when seemed relevant; when such reference is made it is referred to as “ZB/page number/paragraph number”. At the July hearing Ms Flores (JF) was not able to challenge the evidence presented by Ms Bhaloo (ZB) while she was giving evidence in the witness box other than from memory; the task of finding evidence in a timely manner was rendered more difficult due to the fact that a single copy of the trial files were only provided to Cs a few days before trial and that the order of the evidence disclosed by D had been changed by D’s solicitors compared to their original order. Therefore further evidence of facts relating to specific defects has also been included in these submissions in the form of tables and throughout the text of the submissions itself.

Where as the defendants point 3 is very short and say’s;

These submissions should be read in conjunction with the skeleton argument filed on behalf of the D prior to the trial. The matters set out in the skeleton argument are not repeated in full here.

These two points, one the glaringly obvious and in bold on page Claimants Submissions on Liability vs. Defendants Submissions on Liability and two point 3. On page 2 these are so blatantly hardly identical submissions and stretches the imagination beyond belief.

There is also the page numbering which is different.

So lets imagine that this was true and I apologies about labouring the point or being seemingly disrespectful it is a sad fact that it has come to this to take a Judge apart and not in any way our wish to do so but it is deemed necessary to prove wrong doing that can only be described as corrupt.

If Judge Cowell as he purports did make this mistake what ensued in terms of timing leaves the final nail in the coffin as to this being a pack of lies.

How did he react at the time?

1. Possibly since he would have set aside some time on the 7^th Sept 10 to read legal argument he could have felt relief as certainly taking a look at two photo’s two diary entries and a letter from the Home Office of the Social Enterprises good work would have taken 5 minutes instead of the allocated time he would have given himself being hours set aside

2. He could have possibly felt extremely anxious for us since we had failed to put forward any argument but said nothing to that effect in his judgement

3. Possibly he thought we were idiots and left it at that

4. It made his judgement easier since he had just the one document from the defendant to work with on such a complex trial, which he had already read and the legal argument was prepared by a QC so job done

5. He pondered anxiously as to how he could make judgement that just involved the defendant’s representing themselves in court and in writing and thought the claimants must want to give away their money and property in a long winded trial where they’d waste more of their money and time not just for the landlord this time but for the courts and their sinecures too … yes that must be it he thought, how generous of them, he then went away had a lovely cup of tea and copied and pasted the defendants arguments making his work easy peasy to give judgement in the next 24 hours! What a lovely end to a good summer’s break. One thing that bothered him time and time again though was why the girls kept asking for an extension (Jo went to some great lengths to ramble on and on about how more time was needed in a very lengthy email she had sent just a few days before begging that they needed more time to finish their submission’s which he and the other sides solicitors had granted when those girls only served 5 attachments of two diary entries and two photo’s and a letter but he rested his mind with the logic that perhaps one of the diary entries had been lost and they were tearing their houses down trying to find it, hence the need for those extensions!

The new Judgement made no significant changes and given the length of the document and the 359 references it was just shoddy re-hash of the previous Judgement. Considering that the case was not heard in trial and taking into account the numerous references given a days grace to re-hash the Judgement also seems implausible bearing in mind that the 359 references were in 19 bundles an impossible task just showing more corruption. At least if cleverly three to four days were given to deliberate one could believe by now that the Judge had read our case but it was again obvious he did not and the days grace was again a shoddy mistake to seem like he had. The impossibility is astounding.

The second judgement lasted no time at all. The business of forfeiture then came before the costs hearing and both shops were taken from us. The ‘Woodfall’ law here needs scrutinising especially in light of the recent changes to this law because of taking property off people on these flimsy laws. The transcripts would have served to show that even the Judge and Ms Bhaloo had trouble assigning any part of the classic ‘Woodfall’ law used to our case to forfeiture us since we had in fact paid the rent until January 2009 when we had been trespassed/forfeited in Oct 2008. This difficulty for the pair of them took some serious wrangling for them to apply the correct part of Woodfall but they got their heads around it in the end whilst we watched this show of legal family bumbling about trying to tidy it up. And I would or could only suspect that they did that wrong too as they both did not seem to have a clue which part to apply that served the purpose of robbery of the shops. It is fair to add that both parts of the legal family would have been highly aware of the controversy surrounding the ‘Woodfall’ law at the time.

As you will see from above in emails Jo Flores was ill and asked for the case to be adjourned but this too was ignored. When Ms Cracy who was forced to represent us that day asked how long we had to take out our belongings from the shops the Judge said the shops belonged to the defendants immediately. Therefore Jo in the lunch hour before the defendants got their hands on our shops had to rush to them to remove oil paintings, Haddon Stone fountains with the three graces statue and some expensive church pews, desk, bench and other items of value before being back by 2pm for the rest of the costs hearing.

The cost hearing was a joke. On the 6^th Sept Jo wrote to Judge Cowell re a closing speech where her intention was to expose the forensic accountant they had paid £8,500 to as the expert witness that in fact he was the auditor for the other sides solicitors. We asked him not to attend and he ignored us. His ‘conflict of interest’ throws doubt over any costs issue that then ensued.

I would now show at great length the disrepair issues which are all in our submissions and how despite the Judgment all the areas we spoke of that were are causes of action (well actually defence from eviction) we proved ourselves right yet the law was used to take our case to some other place for the defendants to win assisted by the Judge. We do not know what that law is? We still do not have the central Judgment. Yet we have been told today 13^th Dec 11’ in response to our ‘How long must we wait?’ email that the lord of lady Justice will (via my application for the transcripts paid for by the public purse and means tested) get the transcripts and we won’t…

RE: How long must we wait... (B5/2010/2396 - Gavin & Anr v Commun ity Housing Association LTD)

Show Details

Dear Madam,

I am writing to you with regard to the above named case and your emails dated 2^nd and 7^th December 2011.

The Court apologises for any misunderstanding caused and the delay of chasing the approved transcript of judgment, which is out of our hands. The situation is as follows:-

Your appeal bundles are complete except for the transcript of judgment of the hearing before HHJ Cowell on 9^th September 2010. This is necessary because, on reading the transcript of judgment of HHJ Cowell dated 22^nd September 2010, it became clear that he relied on his judgment of the 9^th September 2010 and affirmed it on his judgment of 22^nd September 2010. We have ordered the transcript of judgment of 9^th September 2010 and are chasing the Lower Court for it. As soon as the Court has received a copy we will send it to you directly, and then send the papers down to Court for a decision by a Lord/Lady Justice as soon as possible. You do not need to file an Appellant's Notice against the decision of 9^th September 2010 as the order of the 22^nd September 2010 covers that.

Yours faithfully,  

Siobhan Traynor

Case Progression Manager

Civil Appeals Office

Royal Courts of Justice

Strand

London WC2A 2LL

Tel: 0207 - 947 - 6856

Fax: 0207 - 947 - 6810

Email: civilappeals.cmsb@hmcts.gsi.gov.uk

---

From: Scarlet Maguire Gallery [mailto:scarletmaguire@yahoo.com]
Sent: 07 December 2011 09:35
To: civilappeals.cmsb@hmcts.gsi.gov.uk
Subject: Fw: How long must we wait... (B5/2010/2396 - Gavin & Anr v Commun ity Housing Association LTD)

Dear Siobhan,

You are not making things very clear for me. You emailed me in response to my email of 11th Nov 2011 asking how long must I wait for a reply on permission to appeal, to say you were having difficulties obtaining the approved transcript of Judgment that was sent to me in order for me to apply for permission (of which approved transcript I had waited an astonishing 9 months for). So for expedience sake I dropped off a copy to the High Court Civil appeals office the next day which I replied I would in response to your email of the 29th Nov 2011. In this email you stated I would have to wait another month or SO!!

On return home I found a further letter posted to my home address from the Civil Appeals Office (which was a lot of activity from your office over just two days) in this letter however the story is quite different now you are saying just a day later;

In accordance with Master Hendy would you please supply 1 copy of the official transcript of Judgment in the above matter at public expense to the above address by the 12th Dec 2011. This judgment of the 9th Sept has never been approved and given to me as it should have been.

Now what does this all mean for me.

Does it mean that after me being able to move on in asking for permission to appeal, then filed by me on the  16th Sept, with a shoddy version of the second half of the Judgment sent to me 9 months later that gave me nothing in terms of the Judgment leaving me in the dark as to how I lost two shops and by which law that happened that you will finally get the Judgment and I won't?

This means the Lord or Lady Justice will take a look at my permission for appeal assisted by the transcript and I will have no chance still after all this time to ask for permission based on the facts of law but rather just the extraordinary circumstances of the trial not being fair noted in my permission to appeal skeleton argument.

So please put me straight as a matter of urgency what is the story now?

I simply don't understand.

Many transcripts were applied for to give the full picture of what happened, where are they all?

When you have the 9th Sept approved transcript do I too get a copy?

Do I then have the allocated three weeks to put in permission to appeal again as should be the case with me now able to argue the law element too?

Or am I simply to have my permission to appeal arguments judged whilst you are the only ones holding a copy of the central judgment?

Finally then how long will all this take?

With Kind Regards

Ms Jo Flores

spaceshift...

in association with Scarlet Maguire Gallery

104-108 Cromer Street

London WC1H 8BZ

UK

tel: 00 44 (0) 20 7837 6680
mob: 07916 325037

www.spaceshift.co.uk

www.scarletmaguire.com
www.onepercent4art.com

----- Forwarded Message -----
From: Civil Appeals - CMSB <civilappeals.cmsB@hmcts.gsi.gov.uk>
To: 'Scarlet Maguire Gallery' <scarletmaguire@yahoo.com>
Sent: Tuesday, 29 November 2011, 15:46
Subject: RE: How long must we wait... (B5/2010/2396 - Gavin & Anr v Commun ity Housing Association LTD)

Dear Madam,

Re:    Gavin & Anr v Community Housing Association Ltd

I am writing to you with regard to the above named case and your email dated 11^th November 2011.

Please note the Court is having difficulty obtaining the approved transcript of judgment and it is likely that this matter will be referred to a Lord/Lady Justice in another month or so.

We apologise for the inconvenience.

Yours faithfully,

Siobhan Traynor

Case Progression Manager

Civil Appeals Office

Royal Courts of Justice

Strand

London WC2A 2LL

Tel: 0207 - 947 - 6856

Fax: 0207 - 947 - 6810

Email: civilappeals.cmsb@hmcts.gsi.gov.uk

---

From: Scarlet Maguire Gallery [mailto:scarletmaguire@yahoo.com]
Sent: 11 November 2011 22:25
To: Transcripts
Subject: How long must we wait...

Dear Master Hendy,

Ref: 2110/2396 Permission to Appeal. I filed the skeleton argument on the 16th Sept and whilst I appreciate the courts take quite some time to respond I am curious as to how long?

With King Regards

Ms Jo Flores

spaceshift...

in association with Scarlet Maguire Gallery

104-108 Cromer Street

London WC1H 8BZ

UK

tel: 00 44 (0) 20 7837 6680
mob: 07916 325037

www.spaceshift.co.uk

www.scarletmaguire.com
www.onepercent4art.com

These emails show the latest scam that the Judges get the transcripts and we don’t!

The permission for appeal must therefore be Judged ‘NOT’ with the ‘LAW’ part from the central Judgment of which we have had no access to yet is paid by public purse for by us but only by the elaborate lengths that the courts have gone to, to ensure we don’t get a fair trial. Including today. I attach this document completed at 5.00am on the 14^th Dec 2011 as an extra skeleton argument to the one filed in Sept 2011.

We shall eagerly await the decision but in the event no permission is granted then we want the required ‘certificate’ from the courts within the required time to take this immediately to the House of Lords on the basis of an unfair trial. If the ‘certificate’ is not produced or we experience delays then we will take the case to the European Court (where they at least provide lawyers for claimants) and the claim will be substantially more due to all this messing about causing great poverty, humiliation, removal of status of two ordinary people doing a good job for a great albeit dangerous cause of the rights of young people’s movement.

Ms Jo Flores for and on behalf of both claimants.

http://36ohk6dgmcd1n-c.c.yom.mail.yahoo.net/om/api/1.0/openmail.app.invoke/36ohk6dgmcd1n/9/1.0.35/uk/en-GB/view.html

TO: 1 recipient

Show Details

5.55am 14^th December 2011.

Please see attached and ensure it is given to the Lord or Lady Justice.

I will bring hard copy

Jo Flores

spaceshift...

in association with Scarlet Maguire Gallery

104-108 Cromer Street

London WC1H 8BZ

UK

tel: 00 44 (0) 20 7837 6680
mob: 07916 325037

www.spaceshift.co.uk

www.scarletmaguire.com
www.onepercent4art.com

Attachment. Additional Updated Permission to Appeal Doc added because of more corruption.doc


End of Skeleton Argument II

For reference to the costs hearing here are the notes taken by Jo Flores as she was too ill to represent us and the court ignored a request to postpone: To Skip to it please ignore notes on the second judgment which are in the same doc the first few paragraphs. Then it says COSTS HEARING..

What the Judge said:

On Monday Morning at the start of the hearing 20th Sept 2010 I read out a statement explaining that 3 documents that I d received from the claimants before I gave Judgment on the 9th Sept 2010 had been treated by me as the claimants final submissions on liability. Those documents did not include a lengthy document containing 245 paragraphs which were the claimants final submissions which I saw for the first time during the weekend of the 18th & 19th Sept attached to the claimants application dated the 16th Sept 2010 which was for permission to appeal which application I have not yet dealt with. In all five attachments were sent to me at home at my address on the 7th Sept by my clerk. One consisted of two diary entries which I received another consisted of photographs, two further documents were the two attachments I refer to on the 20th of Sept and the fifth and last attachment was the claimants submissions. I can only assume that when I opened the last attachments which was the claimants submissions I thought it was a copy of the defendants submissions that is because the first page of them both have almost identical paragraphs 1's sub titles a and b on the first page and almost are identical as can be seen simply by looking at the first page of each. I realised on 20th of Sept that I’d inform the clerk of what had happened and I decided that the proper course was to attend to the claimants final submissions on Tuesday the 21st of Sept and consider and if so to what extent I should alter any part of my judgment on the 9th Sept and what further matters might call for consideration as mentioned and then that I should finally give this Judgment on Wed 22nd Which I now do.

So my observations will begin by referring to paragraph numbers of the claimant’s submissions at

Paragraph 7. I mentioned in my judgment Ms Jaqui Greene's concern that matters were attended to and I noticed the contrasting in approaches of Ms Jaqui Greene and Mr UK as he's called.

Paragraph 8. The document that B2 tab (2) 145 does not in my Judgment to relate to any issue that I had to clarify.

Paragraph 9-11. I am aware I'm well aware that when giving evidence witnesses are not there simply to undergo a memory test and with any lapse of memory its no an indication of a deceitful testimony. I relied at the various parts of my Judgment on written accounts and events made much closer to if not contemporaries to the events at the time.
The article at C2 Tab 14 and the plan at C. 99-100 A1 did not go to anything I had decided. I did indeed comment on the witness statements by thee defendants in my Judgement on the 9th Sept and I need add nothing to what I said there.

Paragraphs 12-25. Although I use the lease of 106 to 8 as containing the relevant terms its true that I do not refer to any of the differences between that and thee lease of number 104 the point raised by the claimants in paragraph 17 of the submissions.
In paragraph 18 the claimants set out in clause 2 sub clauses 4 page A3 12 of the lease of 104 and in paragraph 19 the claimants set out in clause 2 sub clauses 1-4 bundle A3 46 of the lease of 106 to 8 in the latter sub clause 2 appears to be a nonsense mistakenly left in or mistakenly left in sub-clause 2 instead of in the clause 4. Clauses 5 sub clause 6 of the lease of 104  A3 35 differs from clause 5 sub clause ......? differs of the lease of 106 to 8 A3 68 in the manner set out in paragraphs 121 of the claimant’s submissions. Two matters are raised which were not mentioned in my Judgment of the 9th Sept and which I must deal with. First a reference to a ........... In both leases in clause 2 sub clause 3 ..........and that is the right to shelter and support and protection from the elements on the demised premises and Simi alary the mention in clause 5 sub-clause 26 of the lease of 104 of the tenants obligation and I quote 'to pay a fair proportion of the costs incurred (or intending to be incurred?) by the landlord in respect of the lighting ...... and maintenance of the fire areas. In my Judgment clause 2 (3) .......  ..... .........  .. by the defendant ....  ..... in accordance with the general law as set out in the .... ..... Guild 1985 a case that features heavily in my Judgment of the 9th Sept and as explained by Lord Millet in (Southwark) and Mills and I also mention in that Judgment it is the tenant grantee right to air these ...... not landlords grantors obligation. The landlord as I understand it must not do any positive act that interferes with and with doing the things that provided support and shelter and protection of the elements that is as far as that rights goes there is not in my Judgment to be implied that in Clause 5 sub-clause 26 any term that the fire escape area should have any particular quality. So that deals with those two points raised in the claimant’s submissions.

Paragraphs 56-62 I have looked again at Mr Hines report D1 301 to 5, he was doing what he could on the claimants behalf just as he was in April 2006  D2 393 after the insurance payment of January 2006 which I mentioned in my Judgment on the 9th Sept. The fact that insurers took the view that the defendant was at fault B2 407 does not mean in my Judgment that the defendant was in breach of a duty to the claimants nor does it follow that the defendant was in breach of a duty to advance an insurance claim on the claimants behalf I read the letter of the 3rd July 2006 B2 489-90 as a request by the claimants for compensation from the defendant it is and I quote the insurances response which is described as extremely slow and unhelpful that in the evidence the defendant was not asked to do anything about that. I mentioned near the end of my Judgment on the 9th Sept the series of letters mentioned by the claimants in their letter to me of the 25th July 2010 two of which are referred to again in paragraph 29 any others also featured in paragraphs 46 and 48 and those letters of C1 81 was also referred to. It still seems as to me that no blame can be attached to the defendant for the failure on the claimant’s part to persuade the insurers to pay them. The claimants by their loss adjuster were in direct communication with the insurers and the defendant did nothing to prevent or hinder it. The loss adjuster main experience after was a lack of information from time to time from employees of the defendant B3 36? 45 but that is a far cry from the defendant being in breach of duty and even if it were such lack of information did not result in the refusal of the insurers to pay the claimants what they were asking for. I have looked at the ..... in  D3 68 96 72 69 96 and 7n again the fact that the insurers took the view the defendant was not covered even on the basis that the defendant ought to have deal with it 6 weeks earlier so were not covered by the terms of the policy brought me to the conclusion that the defendant acted in breach of duty to the claimant. The defendant’s duty was in my judgment as the neighbouring occupier as I explained in my Judgment of the 9th Sept by reference to Guilds case.

I now turn to the particular matters of the claimant.

First the waste stack pipe next to 104. In my Judgment of the 9th Sept I assumed that the leak was reported in Sept 2004 to Jaqui Greene and I fully appreciated the fact that it took six months to remedy. The documents referred to by the claimants do not in themselves answer the question when did the defendant and its agents come to know or when ought the defendant have come to know the actual cause of the leak which meant that thee defendant had then to repair it promptly as in Guilds case. That is the question I answered in the Judgment of the 9th Sept well aware of the discrepancy between Mr UK's written statement and his oral evidence. It was no part of my task to consider the cause of the leak and I did not and do not find that it was either of the claimants accidentally putting a nail into the pipe. My task was to decide when the source of the leak was first known or ought to have been first known to the defendant. The claimants were in my Judgment in no way blamed for the leak as the clearly hinted at in the defendants submissions.

The waste stack pipe in number 106-8 I mentioned in my Judgment of the 9th Sept the diary entries in this case I decided on all the evidence particularly the oral evidence and bearing in mind the imperfections in Mr Uk's case evidence that we ought to know the source of the leak earlier than he did so that was effectively a finding of negligence. It was the defendant to a considerable degree upon the claimants own account which I accepted given by her on the 2nd Feb 2006 C1 Page 337.

The next .... .... was the scene of 104 and the floor damage. I was aware long before the claimants ...... ........ that there was difference as to whether the flood occurred according to what Mr UK was told by the social worker or carer of an occupant of a flat 2. It is important to appreciate Mr Uk was recounting what he was told which in fact he believes is true. The claimants insisted the flood came from flat 3 and believed that see paragraph 106 of their submission that Mr Uk was hiding the truth in an attempt to avoid the defendant having liability for the poor state of repair and maintenance of the flat above and so the claimants allege see paragraphs 108 that the cistern overflowed in flat 3 and that the poor state of repair was the real cause as they contend C1 296. There was in my judgment no evidence that the flood was anything other than an accident of some kind whether flat 2 or flat 3and there was no evidence that the defendant was by any of its employees or in any other way responsible for causing the flood nor that has been referred to any lack of repair for which the defendant was responsible even assume the claimants account in C1 296 to be correct and Mr UKs to be incorrect.

The claimant’s paragraphs 109 to 128 set out the .... .... of the claimants but because the flood was stopped promptly that means contrary to paragraph 126 the law as set out in Guilds case applies and the .... do not in my judgment confer any cause of action on the claimants and in relation to insurance I do not intend to repeat what I said about.

The pavement lights I was referred to C1 111 the statement of Adam the carpenter who begins his statement by pointing out the claimants who are in a dispute with the landlord as to who should fix the ceiling. I considered in my Judgment 9th Sept that Ms Jaqui Greene's attitude as in D1 125 was often referred to by Ms Bhaloo in her final submission was a very sensible one or other wise the defendant would run the risk to ... from the tenant. I accepted the pavement lights were not demised as said correctly by the claimants in paragraph 130 I still adhere to the conclusion expressed in my Judgment of the 9th Sept and .... about my view about clause 2 (3) of the leases I should add that the covenant for quiet enjoyment and the .... derogation from grant does not afford a remedy; the defendant has done no positive act for? quiet enjoyment or for making the premises substantially less fit for the purposes for which they were demised and that observation also applies to an issue about the fire escape.

The electricity cupboard leaked the crucial point I made in my Judgment of the 9th Sept that it was never said the same that the defendant was ever in breach of a duty as in Guilds case because at no time did it know or had the means of knowing where the leak came from so it can't be said to have failed ..... The references of documents given by the claimants do not assist in the discovery of where it was from, the defendant as opposed to Thames Water knew where the leaks came from and the claimant’s submissions paragraphs 150 to 172 read ... what I said on the 9th Sept.

The fire escape and the fix the lighting. the claimants inform me in paragraph in 173 how it came about that the service charge provision was omitted from the lease of 106-8 to which I mentioned the omission in my Judgment 9th Sept and they have helped me provided there explanation for that or other wise I have nothing to add to what I said in my Judgment 9th Sept and to what I have said above about the significance of 5 sub-clause 26 of the lease of 104.

The ventilation and airbricks and there absence from numbers 106-8. The claimants give a very full history for this matter as they see it in paragraphs 197-229 of their submissions. I do not accept the .... of many of the matters of primary fact for which they refer that the defendant was guilty of misrepresentation as suggested in paragraph 219 or that the defendant ... ... was in breach of duty and of negligence and so my reason in my judgment of the 9th Sept remains the same.

Finally in paragraph 230-237 the claimants argue that the defendant where under an implied obligation to repair the structure that is all the building other than the parts of it that are demised. I mentioned in my judgment of the 9th Sept Barrett and lounova 1989. . 1 and ... ... about correlative obligations. Thereby anticipating this argument the affect of which I accept as far as it is consistent with the law contained in Barrett and lounova but it seems to me that none of the complaints made by the claimant involve asking the defendant to repair the structure without which repair the claimants ... repair the demised premises are futile and certainly not complaining about want to repair by the claimants the demised premises so that one issue in relation to the leaking pipes the leaks were identified had to be repaired and have been repaired and the extent of liability is as in Guilds case essentially that of a neighbouring occupier such leaks require special measures. The pavement lights have been repaired and are more simply to repair and have been repaired and this is not therefore a case of the claimants seeking to require the defendant to repair the structure. Lastly in relation to 238-245 I need only say that I took into account on the 20? 7?th Sept all the appropriate submissions of both parties in a separate Judgment given on the 20th Sept in a ... in relation to mean profits the defendants asked me to accept.

COSTS HEARING...

Ms Bhaloo I suppose the next matter should be mean profits.. .. ....

MS Bhaloo: Well your honour we should deal with forfeiture now so your honour knows what the... so your honour doesn’t readily have concerns about knowledge and error but I’d hate your honour to do that without actually realising (can’t read notes)

HHJ Cowell: Yes can I just see what Ms Cracy has to say?

Ms Bhaloo Yes

Ms Cracy:  I ‘d like to ask for permission to appeal and I understand that that is something that has to be done straight away?

HHJ Cowell: Yes normally one asks on what particular grounds which area of the Judgment if not all the areas you say you stand a chance on succeeding on

Ms Cracy: The area well its difficult because you went very quickly and our notes are not written

HHJ Cowell: Yes

Ms Cracy: but it would be based on the fact that you only seemed to have used one law and it couldn’t be applicable to all the incidences in question

And also I understand that we found out that for the procedure that you can give us permission and it seems that there are different possibilities that you give us permission in which case then none of what the… (interrupted)

HHJ Cowell: Yes Yes if I refuse permission you can go to the high court and.. (interrupted)

Ms Cracy: but which Judge?

HHJ Cowell: The appellant Judge!

Ms Cracy: We also need to ask for a stay in this trial pending appeal

HHJ Cowell: Yes

Ms Cracy: Because everything stems from the liability aspect

HHJ Cowell: Yes well  (long silence)

Ms Cracy: and also only recently found out and correct me if I’m wrong but that because we are representing ourselves that we can ask the defendant counsel for the notes on the judgement

HHJ Cowell: Well what rather than anybody throwing notes your in a position to order transcripts of my Judgment and then because you.. the court would approve and then its made available to both parties and what I sometimes do if I receive them is I say that your time for the client to be ahead of time for permission to appeal can be extended until the particular time after the approved transcripts is received on the basis that you have to decide whether  you want to apply for permission to appeal within say three weeks and you must make an application for the transcripts within the three weeks

Ms Cracy: And that?.. (interrupted)

HHJ Cowell: and that takes some time doesn’t it?

But it means that you have to do your part of it within a limited time but it means so you have a period to decide and then if you do decide whether you want to get permission you must make an application for the transcripts say from the as it would be the transcripts of the 9^th Sept and also today (long pause) I suppose the point of law is whether I’m right and find the test in Guild or whether there is a greater liability in the on the defendant only

Ms Cracy:” and the landlord having.. (interrupted)

HHJ Cowell: Well well well the landlord and a greater liability on the (pause) generally we’re not encouraged to give permission to appeal but what I’m inclined to do is either of you, you can take it further and something Ms Bhaloo says it seems to me I should adopt the.. what I just said that we would have until 3 weeks from today in which to decide whether to order the transcript and if you do order the transcript any more time for me in that case in the court of appeal will run from say three weeks from this time you contact us

Ms Bhaloo: Please your honour my attitude to that will depend on pressure on the stay

HHJ Cowell: Yes I haven’t come to the stay

Ms Bhaloo: So you see your honour I can’t .. if there is no stay then to a certain extent that the time frames although of course there should be finality and the financial side and the same approval with the transcripts 3 weeks to decide then our attitude to that might be well.. (interrupted)

HHJ Cowell: Perhaps I better deal with umm can I come back to the stay later on as Ill be in a better position to see what the full ramifications of my decisions will amount to when I’ve gone into the opinions

Ms Cracy: Can I just ask one more question?

HHJ Cowell: Yes do ask

Ms Cracy: If there is …although you have refused permission to appeal do we have to get permission with the right to appeal but if there is no stay as of today on the remain of the trial then… (interrupted)

HHJ Cowell: Well can I come to the stay later on because I want to see what the financial implications are

Ms Cracy: Ok

HHJ Cowell: Because I’ll know as I understand it there’s been peaceable re-entry by forfeiture and you are entitled to get the lease back on payment of arrears then ..

Ms Bhaloo: errr

HHJ Cowell: Not under section a hundred and.. (interrupted)

Ms Bhaloo: 139 is (7 or 11) months after re-entry and the re-entry was in Oct 2008 your honour they? … …. ? Want the place they claim? 30 grand?? (Can’t read notes)

HHJ Cowell: I'll have a look at that

Ms Bhaloo: Your honour I ‘m sorry to interrupt

HHJ Cowell: Just a moment Ms Cracy can I, I’ll come back to the stay make sure you mention it again but I want to see what the consequences are working out what my judgment against you says

Ms Cracy:  Its just I m seriously worried that the consequences will be that the that we appeal will end up in that…

HHJ Cowell: I follow that but .. (interrupted)

Ms Cracy: Meanwhile….

HHJ : Yes we’ll come back to it later I promise I’ll come back to it later

Ms Cracy: Thank you

HHJ: Ms Bhaloo

Ms Bhaloo: We can discuss mean profits according to the Judgment that your honour gave, umm your honour has the evidence in relation to the amounts that the we would go for with forfeiture

HHJ Cowell: Well were are the amounts

Z.. Your honour if I just while I’m here I’ll hand those up

C.. Oh yes I see now

Z.. if I just

C.. yes yes

Z.. If I just take your honour through the various things so start starting with as your honour knows the client forfeited on the 29^th Oct 2008

C..And what was the arrears at the time?

Z..Your honour if I'll take you through the exhibits

C..I wonder if it’s not time to take a cup of coffee there is something in D1 oh one of them..

Z..your honour if if...

C.. Its in the bundle statement ohh yes 85 -92??

Z.. Your honour that's the second one the first one is before that if you can see

C.. Oh yes yes..

Z.. Your honour I’m sorry I know your not I see you’re not but your honour Tab 16 page 77

C.. B1? 77 have you got a copy

Z.. Yes your honour

Z.. Do you want the two of them

C.. No no no I’m fine

Z.. If you’re sure

C.. Yes yes

Z (blab can’t read notes)

C (can’t read notes)

Ms Bhaloo If you look at the statement, which Monique Jamera confirms, and accept that as your honour sees.. (interrupted)

C.. Yes

(Ms Zia Bhaloo as ‘Z’)

Z… that there were in July that the applicant fell behind with their rent she sent out notice of arrears I’ll take your honour through these

C.. Yes yes I see

Z.. On the 14^th August and in response the applicant sought legal advice (on the 24^th august 2008) which we may have looked at in the July trial and that stated the applicants had a different plan and that they would write further within the next few days and then the September quarter wasn’t paid in relation to both and so further arrears sorry and so further notices were sent out and again your honour I can take your honour to those notices so 2625 in relation to 104 and 3500 in respect of 106 and those said that if rent arrears were not paid then bailiffs were instructed to re-enter and your honour in fact I will remind your honour of the covenant of not paying rent which your honour has set out in various and.. (interrupted)

C.. Yes, yes

Z.. and it's a covenant to pay by standing order by equal quarterly payments in advance on the usual day without deduction and then that clause 1 and I’ll be quick time wise clause 6.1 relates to re-entry and we are entitled to re-enter if the whole or any part of the rent is unpaid for 21 days. You see some rent had become due in July and some of it was paid and some of it wasn’t

C.. So what was the arrears in July?

Z.. Your honour

C… Perhaps it doesn’t matter

Z… I’m not sure it does matter

Z… because if you read here the statement … I've got here your honour has it really from I can show you I B2 tab 8’ there’s two lots of numbering

C.. 420

Z .. Yes

C… Yes

Z . and so your honour that's the order so your following the the the June report ....... 104 arrears amounts to 1 thousand 450 your honour see that part

C.. Yes yes

Z.. and... then the next page

C.. Same for the other

Z.. Yes yes umm and then if one goes on your honour will see the letter from Steeles  27^th August

C.. Yes

Z.. and then your honour the 20^th Oct letters page 65 and 17 so on 104 2625 and on 106 3548.

C yes

Z.. so if the court will look at the 29^th Sept

C.. Yes

Z.. That letter is warning there, there is only 21 days thereafter and then we re-enter on the 29^th.

C.. Yes

Z.. Your honour there is also if I may while we are here can I show you another letter that came just prior to re-entry

C.. Yes

Z..Tab 9 page 37 your honour this is the letter that came

C.. Tab 9

Z.. 469

C.. 469

Z.. that's dated the 24^th Oct  2008 it is a letter with which we were told in oral evidence was drafted by Steeles but then the claimants sacked Steeles and sent the letter and your honour we can’t really read all of it but on page 70 paragraphs 6,7,8, and 9 the claimants were saying look we shouldn’t be paying any rent and you cancel any further demands

C.. hmm

Z.. Look your honour look not withstanding the fact the claimants say that they did in fact they did send the cheque the previous day the 23^rd of Oct your honour that cheque didn’t reach us and was never planned ever and assuming it was sent your honour which I don’t think the landlord but it was stopped according to the claimants evidence on the 29th when they realised that re-entry had taken place

C.. Oh I see

Z… Yes

C.. The cheque was stopped at 471 B2 471

Z.. Your honour I should make it clear that if it were issued but I think indeed (can’t read notes) that it is completely inconsistent with the letter so it wasn’t that it was stopped and the re-entry took place on the 29^th

C.. You mean that your client never went to the bank and paid it in

Z.. No it was never received

C.. It was never received yes

Z it was never that we went to the bank we just never received it

C.. Yes yes I see it was never received so you assume it was stolen

Z.. No we were told by the claimants that they paid it because of the re-entry we think that that's made up (can’t read notes)

C.. The only thing that matters to me whether its in dispute that that was not paid

Z.. your honour if the claimant had had the payment stopped and then an on-line transfer was made we have that we have that too

C.. What, what is that?

Z.. Sorry

C.. How much was that?

Z.. All the amounts that were in arrears after forfeiture had taken place

C.. Oh I see and is there a reference to

Z.. Yes.. Well that’s on the next page 432 your honour has the (interrupted)

C.. Fine..

Z..Your honour do you want to have a

C.. Oh this is the umm Ms Cracy’s statement

Z.. Yeah and then the

C.. I see Paid out £2,500

Z.. and the

C.. Oh two six two five

Z.. For both July arrears and the Oct oh sorry the Sept quarter date

C.. And that relates to both properties

Z.. Yeah

C.. So apart from the point about forfeiture that brings the rent up to date

Z.. At that point yeah after that quarter.. And then your honour

C.. That's all that you had said that was in arrears

Z.. Yes….. And then your honour

C.. It was one two I see the July it seems for some reason it was the same figure

Z.. It had been part there had been part payment

C.. Oh I see so that was £2,500 in July

Z.. Yeah

C.. and

Z.. well err yeah

C.. and then  .. well the figures that were transferred were the figures in the Oct letters

Z.. Sorry your honour were on

C..Not to the July

Z.. Yes your honours right there the July (family?.. can’t read word) yes

Ms Cracy: They’re the figures

Long Pause

Z:  Your honour there...

C: yes

Long pause

Z.. I’m sorry there’s I’m sorry

Long Pause

Z.. Your honour having seen these files of the debt that was outstanding at the date of forfeiture was paid on Fridays cancelled

C.. (a lot of umming but can’t read notes)

Z.. Say say

C.. The July the July payment had been paid

Z.. Some of that was paid

C.. But you say that by the 21^st Oct everything then outstanding was paid

Z.. Yep but

C..Then the July was paid

Z.. Yep but the at that point

Long pause

Z..Yes your honour how can I explain this fine if your honour looks at page 5 tab 8 then the whole confusion I’ve caused in the later figures I’ve showed you in Oct

C.. Ahhh

Z.. I think that's why I’ve caused confusion but page 49 does your honour have that

C.. Yes...

Z.. So that's in relation to 104 your honour the three quarterly rent in advance for the dependable date at the top

C.. Quarterly rent in advance yes....

Z.. On the 29^th September your honour that's when the dependant quarter will be made unpaid and then if you look below on the 22^nd Sept the balance brought forward that would be balance from July that had not been paid

C.. Oh yes

Z.. and that makes a total of two six two five

C: Ahhh

Z.. that wasn’t paid and then we have the same calculation that wasn’t paid

C.. I see

Z.. to 106 we have the dependant quarter and then brought forward the June balance not paid which makes a total of three thousand five hundred

C.. I see

Z.. So they the balance of.. (interrupted)

C.. Oh so that between 20^th Oct letters are referring to the two of them

Z.. Yeah yeah

C.. I follow I follow…………yes

Z.. And those sums were then transferred

C.. (can’t read notes) and they were transferred on the 31^st

Z.. Yes after the forfeiture had taken place

C.. Yes.. … Yes … … so.. Those are the facts that these facts were re payment can I just see if Ms Cracy wishes to add

Ms Cracy: Umm

C.. That on the 31^st all the rent due was paid

Ms Cracy: Yes that all the rent was paid up to the end of September

C.. Yes

Ms Cracy: I don’t agree with all that she says in the letter of July because in the gallery the floor had been taken out and that the floor had been covered by the insurance well I’m not going to go through the whole insurance

C.. I certainly don’t need you to do all that … but just at the moment I’m concentrating on only the figures when

Ms Cracy: I’m just trying to explain that we couldn’t get the floor fixed and when we had all the very important bookings on top of all that instead of accepting that then they on top of that… (interrupted)

C.. The section 25 notice yes yes

Ms Cracy: Those are the reasons why we thought we didn’t have to pay the rent

C.. yes yes

Ms Cracy: When we met with solicitors from a firm called Steeles Law it was them that wrote the letter and it was them that told us that we could trigger the cessor of rent clause

C.. Yes well you don’t have to tell me what advice your solicitor gave you

Ms Cracy: Well it’s important because it's the reason we wrote that letter

C… You can yes you can but I’m just telling you don’t have to

Ms Cracy: I don’t really follow, I’m not very good at speaking….(interrupted)

C… Well you don’t need to worry about why you went to solicitors I can quite understand why you did just at the moment I’m concentrating on the figures it seems there’s an agreement between the two of you as to what was paid and when and effectively you can bring matters entirely up to date on the 31^st August ah October

Ms Cracy: Yes we actually sent the cheque and we actually heard from no one

C.. No one

Ms Cracy: No answer we sent that letter as we couldn’t afford the solicitors they did very little work and charged us an exceptional amount of money and we tried to use the parts of the letter they showed us but we had very little confidence or trust in the defendant and so we took the advice in the letter and we just thought we’d approach it in a different manner

C.. And now your cheque you sent it was never attached

Ms Cracy: No it was never attached and there was a conversation between Ms Flores and

Ms Flores: Clarence

Ms Cracy: Clarence at the finance department

Ms Flores: Lots of cheques had gone missing

Ms Cracy: As far as that.. (interrupted)

C.. Yes yes what ever the conversation Ms Cracy was.. (interrupted)

Ms Cracy: Well the conversation was that he said that there was a lot of cheques that went missing recently and that there was a problem between reception and finances, which is when we decided to make a bank transferred to ensure that it couldn’t go missing and yes it was after the bailiffs had got, the transfer

C. Sorry what was after the bailiffs?

 Ms Cracy: this happen after the bailiffs had broken in we phoned

C.. The conversation between Clarence and  yes...

Ms Cracy: Ms Flores yes and we delivered a couple of bank statements that showed the transfer had been

C.. The transfer

Ms Cracy: had been done. In actual fact that transfer was done on the evening of the 30^th Oct but only appears on the statement the day after on the statement

C… Was that the day of the conversation between Clarence and Ms Flores?

Ms Flores:  The transfer and the conversation was all on the same day

Ms Cracy: OK yes, (to Jo) yes, yes your honour and

C.. The same day

Ms Cracy: The same day and the bank statement and the proof of payment was hand delivered to the defendants office the following day

C.. So that's the bank statements

Ms Cracy: Yes, I would also like to say unless it doesn’t make any difference but there was no hope of payment being allowed at the office

C.. Yes

Ms Cracy: and that hopefully that was for all

C…. Anything else?

Ms Cracy: No

C..Right Ms Bhaloo umm why doesn’t that restore the lease on the basis of the equivalent of relief from forfeiture?

Z.. Your honour right can I hand of the?

C..  Yes yes thank you very much, Anyway the facts about payment are agreed

Z.. Yes they’re agreed (are we agreed? Not to my knowledge but I was ill that day so just took notes)

C.. (Muttered can’t read notes)

Z.. Your honour its my impression anyway that the forfeiture took place and the lease came to an end now what I’ve handed out first of all is an extract from Woodfall paragraph 17 of 194

C.. Yes

Z.. Relief within six months of peaceable re-entry so where the lesser has forfeited land for non-payment of rent by re-entry without action the leases may apply to the county court for relief at any time within 6 months of the landlords re-entry and on such application the court may get such relief that the high court would have granted…..  Your honour there are cases where you can’t really have courted to grant relief outside the courts processes and there are cases about that (which she doesn’t mention) and whether that is.... possible or not but that's not what is happened here we were never able to grant relief we in fact the claimants ignored possession and broke back in and we… re-entered again on the… 4^th Nov and then they went off to the high court so they’ve been in possession since then… your honour there has been no application before you in these proceedings there is no entry on the claim (apart from we took it to High Court!!)

C. Was it ever drawn to the court?

Z.. Your honour your honour they had Lesley Longhurst Woods actually and she said something actually (debated by Chan and I publically yes she did no she didn’t!!) about a claim for relief and your honour said yes I wouldn’t mind they..  they’ve.. They’ve… never but the county court can as standard the only and the only jurisdiction that we had to grant relief was under section 138 in association with 139 on the next page the next extract I’ve handed over your honour sees that 138 applied this section has effect where a leasse sorry when a lesser is proceeding by action in the county court being an action in which a tenant has jurisdiction  (can’t read notes no extract handed to us) for non-payment of rent and in that case where we would proceed by action then if you pay the rent (never mentions order in high court not to pay rent by HHJ Clarke or if the fact had we applied in isolation ‘from all the facts’ i.e. harassment, extortion, bribery, cessor of rent and breaking an entry for relief she’d have tried to use just this technicality earlier on and hoped to close the case which they didn’t manage as we brought it to the Queen’s Bench court 37 in 2008) in then you get relief  but page 139 sorry section  139 two which is section in a couple of pages over your honour and that is the perception that Woodfall the extracts from Woodfall  refers to, where a lesser has enforced against a lessee by re-entry without action

C.. This is sub section 2?

Z.. Yes your honour

C.. I see..

Z Arrives at re-entry or forfeiture of the.. Any land for non-payment of rent the lessee may at any time within six months from the date on which the lessor re-entered apply to the county court for relief and on entry and such payment the court may in effect grant to the lessee such relief as the high court granted

(Now don’t you think that that last statement ‘such relief as the High Court granted’ is her undoing?)

Your honour and in my view there’s no jurisdiction to grant relief now and your honour it would because there’s been no rent payment for the period of two years (as rent was asked for by her at the High Court and answered ‘I don’t think so’ very sarcastically by HHJ Clarke’ in what was said then by HHJ Clarke for everyone’s benefit to be a speedy trial establishing all the issues at hand at the county court hence these proceedings) since the end of 2008 any relief would have to be on terms that those arrears those sums are paid with immediate effect

C.. Well it would be everything up to the date of the re-instatement of the lease

Z.. Which would be if there were jurisdiction, which I may remind you that there is none

C.. Yes yes there.. (interrupted)

Z.. That would need sorting out

C.. Yes

Z we can’t have if we carry … (interrupted)

C. Yes. There is an authority on… on that very point but… the relief must relate to the time of the hearing

Z. Yes

C..Relief indeed from

Z.. Hmm hmm

C..But.. It’s more a statement than a (mentions law with no conference to our lack of knowledge and offers no common explanation as is just speaking to her, the legal family, and I am stunned at this) Stuart Collier.

Z.. Oh yes of course

C I believe

Z.. Your honour and we’ll leave that but the purpose of relief would be to put the landlord back

C.. In the position that he

Z.. If he had been if he, which is why a regime of cost in that sort of circumstances its its obvious even if I may say so your honour with out the btt et er het er er  thet that ere that there is there is authorities all all and there is authorities that you can’t just say pay it sometime before we’d have to be satisfied that it would be paid and feel pretty confident

C.. And it would have to be within a period of not less than 28 days (interesting we paid 24 hours after cheque confusion) under section 138 if if it applies

Z.. If if it applies emm your honour I think I should …. Another

C.. Yes yes well I can always change that once the umm

Z.. Your honour theres a clear statement in in Woodfall as to the requirement  that the that the the tenant should be able ummm to paaay

Z.. Your honour so it not just j..t that can’t just be suspended indefinetly there has to be a .. .. they have to pay there has to be a definite date

C.. Fine yes yes yes sure fine of course we have to fix them here (what is ‘them’?)

Z.. Yes

Z… Your honour

C.. We can’t fix a period less than 28 days

Z.. your honour I’m not I’m not sure about the 28 days

C.. umm on ..n Yes its ..   subject to 138 the court will order them to pay if the court is satisfied that the landlord is entitled (interesting word) is fortified to enforce forfeiture its 138 the court shall order within the possessions made within the lessors subject  to not

Z.. Yeah so not yeah

C… For release

Z..Yes sorry I’m concentrating on 139 because in my demission section 138 does not apply (carving it up!!!)

C.. I quite follow but if it were I .. would still yes

Z.. Yes

C.. Trying to see what the figures would be

Z.. Yes your honour

C.. unless of course the rent all the rent was in  ..ah possible way yeah..

Z.. I’m also reminded that in high court in Nov 2008 the claimants were told to apply for relief

Ms Flores: We were not

Ms Cracy: Yeah

Ms Flores: We weren’t were we?

Ms Cracy: Yeah

C: (mutters a lot to her so it won’t get on transcript probably he knows that one!)

LOOONG pause….

C.. Yeahh

Z.. Your honour so it appears on my submissions on forfeiture

C.. So in terms of money claim under your counter claim

Z.. Yeahhhh

C.. What does it come to..

Z.. In terms of mean profits rather than

C.. The mean profits would run from the 25^th of Dec because you get your quarterly

Z.. well your honour I’m not sure that that's a matter of law that may not

C.. That may not be right

Z.. Errr so so there may not be

C.. it brings it literally too

Z.. well that may not be what the law allows

C.. Look I don’t suppose that because the law allows (can’t read the notes) you can only get the higher amount (feeding it to her)

Z.. (sheepishly) yes

C.. (and then mutters a lot of what ever it is that old trick again can’t catch it)

Z.. your honour shall I give you the figures we’ve got?

C.. Yes

Z…and we can we can adjust them I do believe that we’ve handed up a schedule

C: Yes yes you did

Z.. So your honour will see that we’ve adjusted it from the 29^th  umm umm so we can deal with that but in relation to what the total figure to what we’ve paid now is 13 thousand

C.. Just let me understand the system you are taking that first period of 57 days and you make it one o six nine eight nine on the basis of what I’ve signed on Monday and got and past since you received the payment at a different rate (Outrageous!) I could have attended the differences

Z… May I just check ………….your honour I think

C.. the rent was 5 thousand five hundred

Z.. yes your honour the way to deal with your honours point is simply to give credit for the sum we received on thee on thee 31^st

C.. well provided it was thee it's a quarters worth five thousand five hundred divided by four  that's one three seven five

Z.. one three seven five yes your honour

C.. one three seven five

Z.. Your honour that would hmmm

C.. well that's a bigger figure than ..

Z.. ummm

C… But it ran from

Z.. yes it ran from September yes your honour we have to take a proportion of  off the one three seven five and your honour  we can do that we can do that calculation

C.. Yes yes

Z.. then we have to take the amount of one three seven five which applies to the seven days so we need something less than one three seven five on

C.. Yes well you better wipe that out

Z..and similarly your honour with one o six we would have to give credit with a proportion of the part of the amount paid and take that off the 26  48   1 on the last page we, we will do those calculations

C.. Yes so your bringing it in quarterly amounts

Z… Yes I’m not sure we’re obliged to do but that's just a change to do

C.. yes its sensible

Z.. I think there’s a slight advantage there

C.. And this comes up to ?

Z Yes .. (very long pause) right so your honour if one takes 57 days  off the 5500

C.. Yes

Z.. That is eight hundred and 58 pounds and 99 pence

C.. Eight five eight

Z.. 99

C.. 99p

Z..and if one takes  that offff the one o 69 89 that leaves you with a figure of 483.19 

C.. What

Z.. and if one takes that off a seven days period 483.92 four hundred and eighty three ninety

C.. You deduct from 1 o 6 9. 89 from that period

Z.. Err

Z Your honour I think I make that

C.. Oh well I didn’t

Z.. two hundred and ten

C.. Divided by 265

Z. err

C.. yes well and then you multiple by 6 or 7?

Z.. (bated breathe) yeah.. divided by two six five

C. eight five nine nine o

Z..and one o 6 9.88  minus

C ..89

Interruption by me about Oliver clearly filming and recording the procedures I saw him do it many times grab it off him but the Judge does not care at all…. He simply says:

HHJ Cowell: Can you take that outside…

Ms Bhaloo: I make that two hundred and 10 99

(long pause)

Z.. That's two hundred and ten 99

C.. (almosts sings) two hundred and ten 99 ( he’s nervous though about what I just said to Oliver as he has in no way addressed it and Oliver has left the court with his machine still left on the table)

Z.. and so the 13, 169 and 47 pence at the end what I think comes out to

C.. Whats the size of interest (very evilly said)

Z (very serious and teacherly annoyed too) may I just give you the figure for the rent before I COME ONTO (quietly) interest…

C.. Yes yessss

Z.. Umm Your Honour the 13 thousand is just been arrived it doesn’t include the interest (she’s speeding up now as only just got off her high horse and realised what he said and wants more cash for her clients so sounds more begging)

C.. 31

Z thirty one fifty nine

C.. Yes

Z.. If you take the eight five eight ninty off that it become 12 thousand 300 pounds and fifty seven and we can we can go over those to double check them

C.. Yes

Z.. I’m sorry my instructing solicitor makes it three hundred and ten may we just check .. … and we may have to redo that and your honour I will make sure we do the same calculation

C.. Well I think it might be a good idea if umm… I adjourn for a short time err it may that Ms Cracy wants to be satisfied how this is worked out, I think that's the answer but lets see …

Z… Perhaps we’ll explain your honour

BREAK OVER

Z… (some blabbery about her writing) Perhaps I can explain my writing sorry on 104 what I’ve done is 5500 divided by 3 hundred and 65 times six or seven to get to an appropriate amount

Z.. a proportion of the amount of rent and that Comes to 858 92

C…Yes

Z.. and if you want to take that off the amount that we were putting

C.. You get 2 ten 99

Z.. Yes and we were putting the total amount in the end it becomes 12 3 10 67

C.. Well 12 310 67

Z.. Then on 106  9,000 divided by 365 times 54 and its around 1405

C.. 1405

Z.. and one takes that off the one four seven 19 that is the vat figure of 741 pounds and seventy one pence

C… Yes I’m inclined to agree

Z.. and then

C.. I’ll Write in 741 721 (?)

Z.. and then right in  the end 5 thousand and seventy five and 88pence

C Right that s five thousand and seventy five and 88 pence

Z.. that's my instructions depending on (can’t read notes)

C: Yes Ms Cracy have you anything to add I don’t know if you happen to agree that

Ms Cracy: Can we deal with the first part (interrupted)

C..Yes

(longish pause)

C.. Can I tell you how I see it that because you never made an application for forfeiture its too late now plus even if you had made an application to appeal against forfeiture the only order I should make is too within 28 days or possibly a bigger period but not much bigger you make payment to the total of err 12 thousand 310.57 and 25 thousand 75 88 you could get absolutely one or the other of them ,back together also with some costs if it would be impossible in practice to pay that then  you haven’t got to the stage of bankruptcy???

Ms Cracy: Really? Can I talk to you about that law

C.. Yes (can’t read word) that will be at the end???

Ms Cracy: That will come at the end of the trial

C.. Yes that comes to an end at the end of the trial

Ms Cracy: And wouldn’t you at the end of the trial see that that was the appeal?

C.. If You get it and you were to appeal then ..  at a time of .. .. your claim … because of the (counter claim?) you would have to … pay and if you have nothing to pay

Ms Cracy: I’m not sure????

C…I don’t know what do you want to do

Ms Cracy; Well I believe we have been  (can’t read note)…. ….

C… and that's what you wanted to say?

Ms Cracy: Yeah and the …. (can’t read note)

C… Yes well just before I finish have you got some other points you want to raise (he is mean now) can I just ask Ms Bhaloo your view does include the total (can’t read note)

Z  (can’t read note) your honour etc

C In terms of that ( can’t read notes)

Z Well your honour I would seek a declaration that … …. it has been forfeited and … (can’t read notes)

C Yes Yes

Z And that it absolutely had come to an end and … the effect of that that despite the injunction … … blah Law blah blah (can’t read notes.

C Yes Yes and that would be the end of the case

Ms Cracy In relation to mean profits taking into consideration the valuation on Monday (blah blah can’t read note) and that mean profits would be over the valuation of rent that was meant to be paid.. (blah can’t read note) … fit

C Well one can ignore completely the..

Ms Cracy But what I mean is that from the period of forfeiture right to the time where the rent was due for … does that mean you are raising the rent . . ….

C Yes I m raising the rent to what was established on Monday I m taking into account that your payment at the beginning of Oct covers the rent till Dec not all that's why the .. (blah Can’t read note)..

Ms Cracy Over £9,000 because that's why we are not satisfied that the rent is over .. (can’t read notes Bla blah… )

C Yes I’m afraid it's a matter of the law that follows that that's the rent  note ( can’t rbla bah) yes sadly it's a case that follows the case of forfeiture the fact that you have no arrears .. (blab la can’t read note) and if there is anything else you want to say

Ms Cracy Well the lease (can’t read notes blah..)

C Well that has come to an end  (Can’t read note Bl blah)

C The only thing I could do is if you are able to make some form of payment… …. (can’t read notes Blah blah)  at least something that seems reasonable £12,000 or £25,000 that might that might impose (blah blah can’t read note) some sort some sort … yes… The trouble is you see I have to assume that you cannot pay and in fact you … … the premises … Have you been able to use the premises why would you want them back etc ….

Ms Cracy (Blah blab la blab la … very long explanation on use of premises with leaks etc but can’t make out the notes)

C Back to his Judgement on the 9^th Sept I won’t repeat the question of appeal still stands. At the date of peaceable re-entry by the defendants on the 29^th Oct there was er rent outstanding the only thing that can be set against it unfortunately from the point of the claimant is the Judgement of £100 which I gave on contemplation in the Judgement of Monday 20^th Sept. The amount of the rent in arrears on the date of the 29^th Oct was transferred by the claimants to the defendants on the 21^st Oct ordinarily an application for relief by the defendants would have resulted in an order of the up to date sum to be paid under which relief was granted under the section 138 woodfall, unfortunately in this case the claimants did not make an application for relief from forfeiture and so when I am reminded that when they appeared at the county court that one of the instance they would be here and in accordance with 138 and 139 with sub-section 2 enable which to make an application in six months and because there has been no application I then don’t have any jurisdiction to grant relief but I comfort myself by saying that today the amount that today would be by way of mean profit if I had done anyway that's to see.. In the case of 104 that's £12,310.67

 And 106 £25,075.88 and if I granted relief on the basis that the rent had been paid up to date there would be something roughly in the region of about £30,000 altogether owed and that they may not have that kind of money by which some kind of stay while appeal could be drawn… so the order it seems to me I’m bound to make is that the defendants recover possession of the property now and that they are entitled to the two sums to be paid less the £100 I gave judgement … So that is the order that I make  on the basis of my .. Judgement….

Now the next point could be that the claimant could should, that there wasn’t any rent outstanding on the 29^th Oct even so they would still be obliged to pay the rent. It is a tragedy that instead of using the premises (Ha cheek which were unusable) it seems they have spent all there time and effort pursuing the defendant and a tragedy that it may be more that what they now find (in other words and now he is finally showing his true colours in carefully chosen words but you can see his face says exactly what he means, we should not have even dared ever to complain let alone get this far with this case and now the penny has dropped clearly that it has been deliberate that we were constantly being sabotaged by this court to give up and accept defeat with delays and no answers , with cost orders during lead up to trial, and no orders or even answers when it suited them and one sided trial with me in the box for 4 days and no chance to put my case across so told to put it in an EMAIL, then admitting he does not read even our legal submission until I caught him out so he had to put the record straight what in just one day and changes nothing and now all this today was a brutal and patronising slap from on high! It was corrupt!!! £100 off.. Joke)… So I should with permission from Ms Bhaloo that I should extend the permission time from the appellant judge to three weeks after the receipt of the claim of the approved transcripts of my……… but provided that the application was made by the claimants for the transcripts within 3 weeks of today…

So the difficult question is if you are entitled to a stay, its implicit in what I’ve said that I don’t think you are entitled to stay so it would seem to me that to grant a stay would only mean that the defendants would be kept out of the premises unless the amount mentioned in my judgement today.. in my judgement that I shouldn’t allow a stay.

Ms Cracy How long will we have to…

C Well its not really a matter… if you were to provide in terms of money something in the region of several thousand maybe more you could always ask to reconsider the question of a stay as I have to balance the interest of the parties

Ms Cracy (Blah bla can’t read note re time

C Sensible thing is if there is money to speak to Ms Bhaloo but I’m not being optimistic because I can only decide what should be paid when I know what the situation is

Ms Cracy In terms of my other question if there isn’t the money then how long…

C Well I’m afraid that the order is forthwith

Ms Cracy Which means?

C NOW…

(no note …but I remember she said to him ‘You Can’t do that’ and he smiled in her face)

Ms Cracy Isn’t that something you can consider in you Judgement

C They are concerned that the matter is forthwith and they may want time to remove the goods ( he speaks to Ms Bhaloo with an empathises on the ‘Goods’ as he puts it! With slight smile between them.)

Ms Bhaloo blah if the matter is stay… more money.. (na na na) happy you honour

C Just trying to answer ( unclear note blah bal) out of my jurisdiction (again unclear bla word)

Ms Bhaloo Well that just seems to leave the matter of costs

C Yes

Just to add that at one point the judge when he was explaining about the error of his ways again not reading our 90 pages, 245 paragraphs legal submission I did shout out, ‘Yes of course you were so confused because one had the word CLAIMANT on it and the other had the word DEFENDANT!!!!!!!!!!!!!!!!!

Also at the end of the costs hearing I read out an important thing in response to his outrageous TRADEGY comments and his point that we had never asked for ventilation which was ridiculous as we did from the start and clearly with good common sense reason as early as 2005 to Chris Natt about banging out a door…

Plus when I started the case I said we would rely on three important documents..

Banging out a door letter to Chris Natt was one of them!!!

I said, to the Judge finally ‘ 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 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’.. 

(Again one of the only three documents as set out at start of case to use the place for hire so if we got a block booking they would do us under the terms of the lease not to licence hire which may have saved us if we could have got a hiree to long term on the condition that we take their deposit to put in the ventilation.)

I also say that the Judge has tied us up in what will now be a lengthy appeal process something his honour is (‘famously’) well known to have done to claimants before with no regard for their further losses.

I finally say 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 that this court has just knowingly assisted them in doing so in this pro-landlord judgment.

They take our fully refurbished (to the tune of ten’s of thousands of pounds) shops at 5.55am the following day, as it was too late that evening to order a bailiff.