Well that is what you get when you have the most odd case going in town.. where its all about family and connections.. was I ever really going to win when the landlords (Baroness) chairpersons brother in law was the highest Judge in the land.. some how I don't think so.. you don't half pick them Jo.. or are they picked for me on the highest of authority as a battle I alone am forced to declare to you..
The highest Judge in the land talks of http://www.supremecourt.gov.uk/docs/speech-130508.pdf Maintenance, champerty and barretry which finally ceased to be criminal offence's and torts by virtue of sections 13 and 14 of the Criminal Law Act 1967
In my case the insurers fight for their own share of my possessions.. very historical.. like his speech..
and yet he writes in his own speech about the real barons who fought for their lands and why we are a civilized society now thanks to the people..
Ironically I fight for my land, for what is my money, it does not belong to him or any other..
Isn't it barbaric in this day and age for me to declare war.. or is this war of all our army of people with this case be it picked to pieces, oh you would see it was, if you did look..
I think you would find they know the war they fight with me and it's symbolism historically and now.. for my case may be complex but it has greater meaning.. which they are fully aware of..
But on the interesting matter of what is actually going on... in the grand scheme of things.. to do with the way the ESTABLISHMENT is dealing with child abuse here is an oddity..
I went to court on Friday and low and behold Sally Bercow's case is on the same day..
Strangely there were just three cases on the daily cause list.. The court was well and truly locked down..
I went to the prayer room with my friend and we held hands and said the psalm 37 of David aloud mainly not to fret at the inevitable corruption, knowing they would chop off my head within minutes..
Four journalist witnesses in a strangely cameraed up court and a Judge who did not seem confident in his cause..
Judgement was handed down that I had lost my appeal, that the other side be the victors with no leave to appeal to the supreme court the highest of the land but why would he want to face me.. do you understand?
The conspirators had their way that day
I stood and said they had made a clause 5 (22) administrative error that has not been dealt with
and the Judge of no courage said "it's in the Judgement" and finished with a bow his endeavour
But there is nothing in the Judgement of the case I fought for 5 years to plead
They may as well have made me deal with a parking fine when it was a mortgage that I plead
What ways.. can this really be law.. there is a joke in this somewhere when they are all above the law
See my other blog.. for what went on.. www.shopsbuildinginsurancelaw.blogspot.com @justjomakinglaw twitter
Footnote to Sally
http://www.youtube.com/watch?v=dzY0-I4Gq5w
This draft Judgement was sent to us as is standard for correction in fact, spelling mistakes etc and so I sent back this.. with absolutely no reply.. whatsoever... I then filled out an N244 form to see if they could stay the Judgment as clause 5(22) in other words.. MY CASE.. had not been dealt with.. to the N244 form for a stay it was answered with a NO.. and that was it.. pathetic..
I still think that the supreme court should have the balls to deal with this important procedural admin error (that's putting it nicely) as I will have to go to Europe and won't be quiet about it...
It's not difficult to understand.. so read.. it just requires patience that is ALL....
Case No: B5/2010/2396
IN THE COURT OF APPEAL (CIVIL
DIVISION)
ON APPEAL FROM THE CENTRAL LONDON
COUNTY COURT
HH JUDGE COWELL
CHY09015
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 24th May 2013
Before
:
LORD
JUSTICE MUMMERY
- - - - - - - - - - - - - - - - - - - - -
Between
:
|
|
GAVIN
& ANOR
|
Claimants/Appellants
|
|
|
- and -
|
|
|
|
Community housing
association limited
(now one housing group
limited)
|
Defendant
Respondent
|
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -
Ms Jo Flores
(Gavin)
appeared in person for Appellants
Ms Zia
Bhaloo QC (instructed by Bircham Dyson Bell LLP) for the Respondent
Hearing dates : 2nd and 3rd
May 2013
- - - - - - - - - - - - - - - - - - - - -
DRAFT JUDGMENT
1.
This is an appeal by Ms Jo Flores (formerly Ms Jo
Gavin) and Ms Chantal Cracy against an order of HH Judge Cowell dated 22nd
September 2010 which was made at the conclusion of proceedings in the Central
London County Court.
2.
Ms Flores is the tenant of commercial premises at 104,
Cromer Street, London, WC1 (“104”) under a lease from the Respondent, Community
Housing Association Limited (“CHAL”), dated 8th June 2000. Together with Ms Cracy she is also the
tenant of adjoining premises at 106/108 Cromer Street (“106”) under a lease
from CHAL dated 17th March 2005. The lease of 104 was granted for a term of 6 years from 8th
June 2000 at an initial rent of £3,500 per annum subject to review. The lease of 106 was granted for a term
of two years from 8th April 2004 and was then extended on 17th
March 2005 for a term until 7th April 2014 at an initial rent of £9,000
per annum again subject to review.
2. CHA is the acronym for ‘Community Housing Association’
that has been used throughout the trial and adding an L for limited cannot be
the new acronym in the judgment, as limited does not form any part of any
acronym.
3.
The demise under both leases comprised the ground floor
and basement of the premises including internal plaster; ceiling and floor
coverings; doors and windows; and all conduits within the demised
premises. It did not extend to any
part of the upper floors of 104 and 106 which have been converted into
residential flats and have been let as such by CHAL. Nor did it include the soil pipes on the outside rear wall
of the building which serve the upper part of the premises.
3. The lease for 104 Cromer Street was at an initial rent of
£6,500 not £3,500.
One cannot use the term ‘part of the premises’ it can only
be said as ‘outside’ of the retained premises. Or it could be construed as
‘part’ if ‘part’ is used, as if the premises were ‘part’ as opposed to ‘above’
with a separate entrance and exit.
4.
Under both leases the tenants covenanted to put and
keep the demised premises in good and substantial repair, decoration and
condition (clause 5(6)(b)) and to decorate them every three years (clause
5(6)(c)) but there is no corresponding covenant by CHAL as landlord to repair
those parts of the building which it has retained. Instead its only express covenants are that the tenant
should have quiet enjoyment of the demised premises (clause 7(1)) and an
insurance covenant (clause 7(2)) which (so far as material) is in these terms:
“To insure the Demised Premises and the Development in an
insurance office of good repute or at Lloyds against the Insured Risks and in
the event of the Demised Premises being destroyed or damaged by any of the
Insured Risks the Landlord shall with all convenient speed (subject to the
availability of all necessary labour and materials and the obtaining of all
necessary permissions) lay out and apply in rebuilding repairing or otherwise
reinstating the Demised Premises all monies received by virtue of such
insurance other than monies received in respect of loss of rent Provided that
the Landlord shall be under no liability to the Tenant hereunder if the
insurance money under any policy of insurance effected by the Landlords shall
be wholly or partially irrecoverable in the circumstances set out in 5(22)
above….”.
4. With regard to the comment in brackets (so far as is
material); the UKU building policy which forms an integral part of two leases
insured repairing obligations, had an express obligation, with regard to
‘Property Owners Liability’ as well as ‘Material Damage’ in the building
policy. POL as it is known was very ‘material’ to the case because it covered
business interruption caused by any retained premises of the landlord and
indeed the claimants qualified for POL under the loss assessors report for UKU
so that is not in dispute and must be made clear as it is not at all in this
draft and it is primary fact as proved.
The claimants additionally through another RSA loss
assessors report qualified for the RSA excess liability cover too only if the
primary policy UKU POL was exceeded, as it was, due to the delays by the
landlord in repairing the leaseholders premises. Evidence of the two policies
being linked as forming an integral part of the same policy for the leaseholders
for which they paid a premium was given to the court of appeal.
Ms Flores handed the document to the court of appeal which
clearly said on the front page of the 15 pages she handed up of the RSA excess
POL policy and is hi-lighted as such as saying; ‘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.
On the second page there is further evidence of the excess
liability policy being linked to the primary policy and is also hi-lighted as
saying;
CROSS LIABILITY CLAUSE
If more than one policyholder is named in the schedule each policyholder
so named shall be considered, as a separate and distinct entity and cover shall
be construed as applying to each policyholder as though each had been insured
separately
Further and highlighted also; ‘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!
Ms Bhaloo tried to say our case was a section 11 and that
was a lie and Ms Bhaloo further blatantly gave false information and lied in
court saying that the UKU policy was not linked to the RSA policy. She further
lied when asked if the UKU building policy covered POL and she said no it is
just for material damage. She knew she was lying on both counts as she did with
section 11, disputed by the judge correctly. This lie is the undoing of the
case and must be re-read in the factual evidence of the RSA policy documents Ms
Flores handed the court. Finally on that point Ms Bhaloo gave false information
when asked what was the ‘development’? She said this was standard wording, when
actually the ‘development’ is the 17 million pounds residential ‘development’
paid for by government grant given to CHA in 1998 and as such is insured! Hence
there is an expressed covenant to keep the residential flats which form part of
the ‘development’ insured from all risks including escape of water so that is
the corresponding express covenant to repair the retained parts. It therefore
cannot be said there is no corresponding covenant if one is to take Clause 7(2)
of the lease, so far as is material and apply it.
5.
The “insured risks” are defined by clause 1(11) to
mean:
“loss or damage by or in consequence of fire and such other
risks as the Landlord may deem desirable or expedient including three years
loss of rent and architects and surveyors fees and demolition clearance and
similar expenses.”
6.
Clause 5(22) provides that:
“In the event of the Demised Premises or the building in
which they are situate or any neighbouring premises or any of them or any part
thereof being destroyed or damaged by any of the Insured Risks and the
insurance money under any policy of insurance effected thereon by the Landlord
being by reason of any act neglect default or omission of the Tenant wholly or
partially irrecoverable forthwith in every such case to pay to the Landlord on
demand the cost of rebuilding and reinstating the building or buildings so destroyed
or damaged such rebuilding works to be carried out by and in accordance with
the requirements of the Landlord and the Tenant being allowed towards the
expenses of so doing (upon such rebuilding and reinstatement being completed)
the amount (if any) actually received by or on behalf of the Landlord (other
than in respect of loss of rent) under any such insurance as aforesaid in
respect of such destruction or damage.”
7.
Under the heading “Landlord’s Liability” clause 6(5)(a)
also provides that:
“In any case where the facts are or should reasonably be
known to the Tenant and not reasonably known by the Landlord the Landlord shall
not be liable to the Tenant in respect of any failure of the Landlord to
perform any of its obligations to the Tenant hereunder whether express or
implied unless and until the Tenant has notified the Landlord of the facts
giving rise to the failure and the Landlord has failed within a reasonable time
to remedy the same.”
8.
In addition to these provisions clause 6(3) of each
lease contains a cesser of rent clause in the following terms:
“If the Demised Premises or any part thereof shall be
destroyed or so damaged by fire or any other risk for which the Landlord is
indemnified under the insurance of the Demised Premises so as to be unfit for occupation
or use then unless the insurance of the Demised Premises shall have been
vitiated by the act neglect default or omission of the Tenant the rent hereby
reserved or a fair and just proportion thereof according to the nature and
extent of the damage sustained shall be suspended and cease to be payable until
the Demised Premises or damaged portion thereof shall have been reinstated or
made fit for occupation or until the third anniversary of such destruction or
damage whichever shall be the sooner.”
9.
There is also the usual proviso for re-entry in the
event of rent being unpaid for 21 days or of any breach of the tenant’s
covenants: see clause 6(1).
10.
The appellants fitted out the demised premises at some
expense for use as gallery space and, as part of their business, let out part
of the area for exhibits and other commercial events. But on at least four occasions between
April 2004 and June 2005 the interior of the demised premises was damaged by
the ingress of water and on two occasions sewage from the parts of the building
retained by CHAL. The judge found
that in April 2004 gaps between the glass pavement lights above the basement of
106 let water through. They were
repaired in September 2004 and in January 2006 an insurance payment of £150 was
made in respect of the damage. In
September 2004 one of the soil pipes carrying sewage from the flats above
leaked and sewage permeated the rear wall of 104. The leak was remedied by the landlord’s contractors on 31st
January 2005 and part of the wall was then replaced. A further insurance payment was made in respect of the
damage.
10. When the leak at 106 is mentioned as starting in April
and commencing in Sept 2004 that is incorrect. It was repaired as ‘agreed’ by
both parties in Nov 2004. Also the damage of £150 was ‘material damage’ (as was
all the £3,500 ‘reimbursed’ to the claimants) not damages. The £150 payment was
for a small section of ceiling that still had to be repaired and was by the
claimants. The rest of the repair of the April-Nov 04 repair was made by the
defendants, including fixing the pavement and the internal ceiling. So either
miss out the irrelevant £150 re-imbursement or put in all the material damage
facts of repair or this continues to be mis-leading as that particular repair
amounted to thousands of pounds worth of repair not £150.
Again the Sept 2004 to Jan 2005 date is incorrect it was
finished in Feb 2005 as agreed by both parties.
The words ‘a further insurance payment was made in respect
of the damage’ is misleading to. Firstly to who as it was not us? Secondly is
this again ‘material damage’ or damages it is very unclear?
The 7th Feb-26th April 2005 soil stack
leak says ‘Again this would have resulted in an insurance payment but for the
excess on the policy of £100.’ It is very unclear as to whom the draft is
referring to. Being paid to whom? For what?
The 24th June – Oct 2005 flooding incident says
the, “costs of the works were met by the insurer” but all the costs of
‘material damage’ were met by the insurer, to either the claimant or the
landlord whom ever had fixed. The word is re-imbursed for material damage and
that would make all this a lot clearer.
On the words ‘associated damages to the exhibition’ no
damages were paid or associated costs whatsoever. A small amount of stationary
‘contents’, were paid for those that were flooded. The associated damages or
costs are still the subject of a POL investigation and these court proceedings
will determine if POL pays out. So again this is very misleading.
To make it clear we were reimbursed as we mitigated our
losses by doing the repairs ourselves other costs associated with the
exhibition clearly have not been met. It would be like getting run over by a
car, paying your own medical bills and then when liability is established being
reimbursed for you medical bills but nothing for damages yet. Reimbursed, as a
word must therefore be used.
11.
On 7th February 2005 there was then another leak
from a stack pipe on the rear wall of 106 which was repaired on 26th
April 2005. Again this would have
resulted in an insurance payment but for the excess on the policy of £100. Finally on 24th June 2005
water from a tap or leaking pipe in one of the flats above 104 inundated the
demised premises about a week before an art exhibition was due to be held. It necessitated the replacement of the
ceiling (which was completed in October 2005). The cost of those works was met by the insurers and the
appellants received a cheque direct from the insurers of £3,441.65 to meet
these and other costs associated with the exhibition.
12.
The judge found that all of these leaks (including the
defective pavement lights) emanated from the premises retained in the ownership
of CHAL. But, in the absence of
any express repairing covenant in respect of its adjoining premises, CHAL
contended that it had no liability to the appellants beyond being required to
lay out payments received from the buildings insurance it had taken out pursuant
to clause 7(2) of the leases in the repair of the damage to the demised
premises which had been caused. It
is common ground that this was done.
12. CHA had no express responsibility except to pay out
monies received from the insurers. It is common ground this was done. It is not
common ground and cannot be contended as such. POL on the insurance policy or
cessor of rent whether partially unfit/wholly unfit has not been paid out as
contended. Also as proved it will not be paid out as the landlord vitiated the
insurance policy by failing to repair on time and/or make claims on the
insurance policy on time. If the landlord (hypocritically back by the insured
to avoid the claim) believes that the repairs were repaired reasonably after
notice then tell that to the insurers not to all else. CHA have an express
covenant and a proprietary duty to attain the POL payment owed to the claimants
as set out in 7(2) of the leases for business interruption (and for rent owed)
as set out in the schedule of loss with the particulars of claim, as part unfit
and at times wholly unfit with the said times clearly stated in the schedule as
well as multiple occurrences often subsumed to one period of unfitness and
therefore claim of damages. It would be a duty of the court to point to this
information and it would be difficult to see how the insurer after backing a
claim that the landlord repaired on time could then turn around and say the
opposite since they have backed this line of thinking. It in turn then does not
get them off the hook to honour the landlord in an expressed obligation to be
covered for property owner’s liability. CHA could even admit it as Chris Natt
did when he said “I thought we were covered even if we did wrong, I think we
could end up with a very bad defence in court’. The policy does not allow for
people to admit liability, ‘except’ when they say, it is obvious. Well it is
obvious. The liability came from outside of the retained parts and Jaqui Greene
also admitted it when she said the leaseholders could claim for business
interruption, loss of rent and damages. All of which Ms Flores pointed to in
court. It is unfortunate that the landlord is now put to a weak defence of lies
and avoidance of the issue that they broke the terms of the insurance. They
should admit it or the court say that it is true as HHJ Cowell did say and this
is ignored in the draft. The landlord and the claimant who were once morally
and socially on the same side have been set against each other to save the
insurers a claim. This must be addressed. The landlord, who are not now even in
the cover of the insurers would do well to admit liability and put a stop to
this moral injustice. They would have much to gain by having the courage to do
so when they know they are liable by anyone’s reasonable standards of
interrupting another’s business and then being held hostage by their insured to
defend the ridiculousness of this once simple claim that only got bigger as
time moved on and the claim escalated. A chartered accountant could then assess
the damages as historically suggested but until then their mighty legal team
cannot ruin us indiscriminately.
13.
Until June 2008 the appellants continued to pay the
rent due under both leases but the rent due on the June quarter day was not
paid and, as a result, CHAL served notices in respect of both leases that
unless payment was received within 7 days it would proceed to re-enter and
forfeit the leases. The rent due
on 29th September also went unpaid and the landlord served further
notices of its intention to forfeit the leases. The appellants responded through their solicitors to the
effect that they had no liability for rent for those quarters because they had
continued to pay rent in 2005 when the demised premises had been unfit for
occupation within the meaning of the cesser of rent clause contained in clause
6(3) of the two leases. As a
consequence, they were entitled to recover the rent paid (but not due) during
this period and to set off the relevant amount against the rent due in
September and October 2008.
13. The rent was paid albeit by bullying us with the treat
of eviction but it has never been proven that it was not paid, quite the
contrary it was proven that it was and that evidence was too offered to the
court of appeal, which said they did not need to see it. It was however
accepted by all the judges involved so couldn’t now be said not to have been
paid at the date of re-entry making it a trespass.
14.
On 29th October 2008 CHAL re-entered 104 and
106 and changed the locks. On 4th
November Wilkie J. granted the appellants an injunction ex parte requiring CHAL to allow them back into possession and this
injunction was continued until trial by Christopher Clarke J. on 14th
November. The landlord’s case at
the inter partes hearing (and on this
appeal) is that the appellants have no claim in restitution or otherwise to
recover the rent which they paid in 2005 even if (which is denied) the premises
were unfit for occupation in that period.
Judge Cowell found at the trial that the cesser of rent clause had never
come into operation because, as he put it, there was never an occasion when the
premises were wholly unfit for occupation and use. That conclusion is challenged in one of the grounds of
appeal on the basis that the judge failed to give any consideration to whether
“any part” of the demised premises became unfit for use.
14. It should say the challenge ‘as set out in leases with
the inseparable insurance documents regarding the cessor of rent ‘if the demise
becomes part or wholly unfit’ then the cessor of rent comes into operation. HHJ
Cowell addressed that in his second judgment.
15.
The appellants’ claim for damages was issued on 3rd
December 2008 and eventually came to trial on 12th July 2010. It sought to recover damages for financial
loss consequent on the disrepair to their premises caused by the leaks I have
mentioned. This was said to have
run into many hundreds of thousands of pounds in the form of lost business and
at one point the damages claim exceeded £2m. In order to succeed in a claim for this type of loss the
appellants must establish a breach of duty on the part of CHAL whether in
contract or in tort arising from the various leaks which occurred. The basis of such liability is said to
be an implied obligation to keep the retained parts in repair or alternatively
a common law duty as adjoining occupier to remedy any defect in those premises
which was capable of causing damage to the demised premises.
15 The claim was thousands of pounds as the business could
command those figures. The figures are not said without expert evidence. The
other claim is for the loss of opportunity of Ms Flores social enterprise Youth
Parliament and is an additional claim under the CPR rules and should be stated
as such and is justified by the defendant’s knowledge of the social enterprise.
It is additional damages not business interruption covered under POL in the
express clause 7(2) of the leases.
In order to succeed in a claim for this type of loss the
claimants need to establish a breach of duty in contract. The breach of duty is
the act of omission that has been proved in disclosure and earlier by the
eminent loss adjuster Alan Harris that the landlord had vitiated the insurance
and POL could therefore not be paid.
The basis of such liability is said to be an implied clause
etc etc, no that is not what Ms Flores said in court. She clearly stated at the
court of appeal she either wanted absolute liability as covered by an insured
risk, which is the purpose of liability insurance of the building and/or an
implied covenant to 5 (22) of the leases regarding vitiating the insurance. No
case was made in the court of appeal that CHA had any repairing obligations and
none can no be said to have been sought that would simply be to now make things
up and try something that was never asserted. If it were asserted notice and
other issues may have been brought into the equation but Ms Flores steered very
clear in her path to establish that the implied clause she sought to establish
was 5(22) and no other.
16.
Judge Cowell accepted that there was a
duty on the part of CHAL to remedy any defects in the retained premises which
would cause damage to the demised premises at 104 and 106. He based this on the decision in Hargroves,
Aronson & Co v Hartopp [1905] 1 KB 472 which was approved by this court in Cockburn v Smith [1924] 2 KB 119. The scope of that duty was, he held, to take reasonable care
to remedy defects in the retained premises which the landlord knew had caused,
or were likely to cause, damage to the premises demised to the tenants. Absent negligence, the duty to repair
only arose once the landlord was aware that damage had been caused.
17.
The judge
found that there was no breach of duty in respect of the leak from the soil
pipe at the rear of 104 because the landlord had acted reasonably in attempting
to trace the source of the leak once the damage it was causing had been
notified. He also found that the
flood caused by the leak in the flat above 104 in June 2005 was an
unforeseeable accident and that repairs were carried out promptly. But he did hold CHAL liable for breach
of duty in relation to the leak from the soil stack pipe at the back of 106 in
2005 not because it ought to have been aware that the pipe was leaking but
because, once alerted to the damage, it could and should have remedied the leak
by 8th April 2005 at the latest. Its failure to carry out the repairs until 26th
April was therefore actionable.
18.
In
relation to the claim based on the leaking pavement lights at 106, the judge
was asked to consider three separate periods. The occasion of the first leaks at the time of the grant of
the first lease in 2004; a second period of leaks between June and October
2006; and a third period between May and June 2008. The judge accepted that the problems with the pavement
lights were covered by the principle of caveat lessee which I will come to
later. But if wrong about that he
held that the leak in 2004 could have been easily remedied by the tenant and
was within their duty to mitigate.
The cost of repair was later met by insurance. In relation to the leaks in 2006, the judge held that there
was no culpable delay on the part of CHAL and that when it appeared that the
repairs would not be covered by insurance then the work was done at the
landlord’s expense. Again the
judge held that the tenants should have carried out repairs themselves earlier
as part of a duty to mitigate. The
judge also decided that there had been no breach of duty in respect of the
leaks in 2008 because at no time did CHAL know or have the means of knowing
where the leak was coming from.
18. The pavement was an insured risk as in water ingress. An
insured risk. It is neither here nor there how that was caused or if the
defendant was covered it mattered not to the claimant. The judge held that the
pavement did belong to the defendant and therefore POL would be established
which is an insured risk. The claimants had no means to fix a pavement nor
should one be suggested as a reason to relief the defendant of a duty to make
claims on the insurance for damage was caused to the claimant’s premises. At
all times the claimants complied with their own repair obligation they cannot
in law be expected to cover repairs outside of the demise. They could not
afford the thousands to do so. Not to depart from reality the job involves 5
men and a lorry load of black molten substance to seal the pavement and is
expensive. Further the claimants have no right to touch the pavement in law and
were expressly forbidden (as proved in email correspondence) by the defendants
not to contract the defendant’s contractors to mitigate. This has to be
addressed in the draft as the claimant’s hands were simply tied and we had no
duty to mitigate even if we tried to. The 2008 leak was caused by rain leaking
into the pavement seal the defendants had access to the pavement and had the
means of knowledge from two previous repairs there was therefore nothing to
trace and/or means of knowing does not enter the equation once they had notice
too as proved it was reported.
If you are which is not clear from the draft talking of the
electricity cupboard then that was an insured risk and the insurance paid for
contractors found the leak in 10 minutes. Bad contactor as in woodfall on the
defendant’s behalf in law is not an excuse for a three-year leak.
19.
In summary
then the judge found that only one breach of duty sounding in damages had been
established and that related only to the three weeks in April 2005 when there
was a delay in remedying the leak to the soil stack at 106. For this he awarded the tenants the sum
of £100. Since this was obviously
insufficient to extinguish the arrears of rent he declared in his order that
both leases had been forfeited by the landlord’s re-entry on 29th
October 2008 and ordered the appellants to deliver possession of the premises
at 104 and 106 forthwith. They
were ordered to pay mesne profits in a sum which represents the market rent of
the premises from the forfeiture of the leases until possession and to pay the
costs of the action to be assessed on an indemnity basis. He also refused permission to appeal.
19. There were no arrears and no set-off, so if insufficient
to extinguish the arrears is being used then the fact must be established that
there were no arrears.
20.
The
tenants’ original grounds of appeal were based on an alleged breach of the
rules of natural justice and/or Article 6. They acted in person at the trial and the judge is said to
have failed to ensure that there was a fair trial. They also challenged the judge’s formulation of the scope of
the landlord’s duty. But in
November 2012 they secured the assistance of Mr Jan Luba QC pro bono who re-formulated the grounds
of appeal and successfully obtained leave from this court on 4th
December 2012 to substitute the amended grounds for those contained in the
appellant’s notice. Although Ms
Flores has argued the appeal in person, we have been assisted by the very full
Advocate’s Statement first used at the hearing on 4th December as
well as by the submissions which Ms Flores has made. There are now 9 grounds of appeal which
can be summarised as follows:
(1)
the judge
was wrong to hold that the landlord’s liability for damage caused by a defect
in the retained premises was limited to a liability in negligence and depended
on the landlord having notice of the defect and a reasonable opportunity to
remedy it. He should have held
that the landlord was in breach as soon as the defect occurred and caused
damage to the demised premises;
(2)
the
absolute duty contended for arose as an implied obligation under the
lease. The principle of caveat
lessee has no application;
(3)
the judge
misconstrued the rent cesser provisions which were triggered by the damage to
part of the premises and the tenants were entitled to recover and set off the
rent paid during that period against their liabilities for unpaid rent in 2008;
(4)
if the
tenants succeed on grounds (1)-(3) they are entitled to substantial damages for
loss of profit;
(5)
even if
the tenants are wrong on grounds (1)-(3) the damages of £100 awarded for the
breach which the judge found proved were grossly inadequate;
(6) and
(7) if the tenants are entitled to
substantial damages for loss of profit in excess of the rent due up to 29th
October 2008 then the landlord was not entitled to forfeit the leases and the
tenants’ continuing liability is to pay rent at the rate reserved and not mesne
profits; and
(8) and
(9) the judge’s order that the tenants
should pay the costs of the action including the reserved costs of all
interlocutory applications was clearly wrong.
20. Ms Flores was ordered to have pro-bono by LJ Ward. Her
grounds have before pro-bono and then after been that the landlord broke the
terms of the insurance and had an expressed covenant in the lease to get the
insurance to pay as in the case of vural v security archives.
If you are going to summarise the wording for the grounds of
appeal then this needs to accurately reflect what was sought in the grounds. I
want the original grounds put in here as they leave bits out especially in
ground two for example;
What is said is this;
2. The judge misdirected himself in law as
to the landlord’s liability for disrepair
under the leases held by the tenants in
this case. He ought to have held that the
tenants’ obligations to repair, in respect
of the demised premises, were
matched by a correlative implied obligation
on the landlord to keep in repair,
at all times: (1) the parts of the building
retained in its ownership and control,
defects in which may affect the demised
premises; and/or (2) such parts of the
building as might, if defective, lead to
the occurrence of damage covered by
an insured risk.
Now if Ms Flores were to take out ‘and/or’ it would say;
He ought to have held that the tenants’
obligations to repair, in respect of the demised premises, were matched by a
correlative implied obligation on the landlord to keep in repair, at all times:
such parts of the building as might, if defective, lead to the occurrence of
damage covered by an insured risk.
So we can all summarise to show what we mean but one cannot
simply leave parts out! The insurance here has been omitted and as Ms Flores
argued that point 5(22) as the implied covenant in court this cannot be simply
left out! It is misleading.
21.
In his Advocate’s Statement and at the hearing on 4th
December Mr Luba made it clear that the tenants could not and did not seek to
go behind the judge’s findings of fact as to the extent of the damage to their
premises or as to the cause of that damage. But prior to the hearing of the appeal Ms Flores sought
permission to challenge the findings by the judge that there was no negligence
by asking this court to find (1) that the claimants had previously asked for
the structure to be repaired so as to put the landlord on notice of the defects
and (2) that the flood from the upstairs flat was not an accident but was due
to disrepair. This application was
opposed by Ms Bhaloo QC on behalf of CHAL on the basis that it would
necessitate an adjournment of the appeal in order to produce transcripts of the
relevant evidence and was in direct contradiction of the basis on which
permission to appeal on the amended grounds was granted. In my judgment we should refuse
permission to add these grounds of appeal. The judge had all the evidence and the material provided in
support of the application has not persuaded me that there is any substance in
either point. Moreover permission
to appeal was granted on the footing that it was not open to the tenants to
seek to go behind the judge’s findings as to the circumstances in which the
damage came to be caused. The
tenants obtained permission to appeal on that basis and I can see no
justification for allowing them to resile from that position.
21. It was never said in the court of appeal that
transcripts on the point of the structure were needed by Ms Bhaloo nor that
proceeding would need to be adjourned. However evidence was provided that the
claimants did ask for the structure to be repaired and HHJ Cowell had said that
there would be a duty to repair on notice if this was the case. The irrefutable
evidence does not therefore require transcripts for the finding of fact and the
court of appeal should deal with the matter and not simply resile from it due
to delay tactics when they have the evidence at hand and it is conclusive of
primary fact that ought to be challenged. It does not conflict or have
consequences for any other grounds that were sought. It is simply an error of
primary fact and no amount of technicality can divert from the issue
outstanding that caused such consequences as the claimants business to be
utterly unworkable as they were then illegal.
22.
The other introductory matter which I need to mention
is the respondent’s notice. CHAL
have served a respondent’s notice by which they cross-appeal against the judge’s
award of £100 for breach of duty in respect of the delayed repair of the
external soil pipe at 106. Their
case is that the express terms of the lease excluded the duty which the judge
found to have been breached so that, regardless of any negligence or breach of duty,
the landlord had no liability to the tenants for damage caused to the demised
premises by any of the leaks. They
also rely on the fact that in the case of 104 Ms Flores failed to apply to the
County Court for a new tenancy under Part II of the Landlord and Tenant Act
1954 by the 6th April 2009 when the landlord’s s.25 notice
expired. As a consequence, Ms
Flores, they say, has lost her right to possession of those premises regardless
of whether the lease was forfeited for non-payment of rent in October 2008.
Liability
23.
I turn then to the first two grounds of
appeal which relate to the nature of the landlord’s liability (if any) to
repair the retained part of the building.
The tenants’ case on this depends upon the duty which the judge found to
be established by the decision of this court in Cockburn
v Smith and on the more general argument that the court should in this case
imply into the lease a covenant by the landlord to keep the retained premises
in repair at all times. It is, of
course, critical to the success of this argument that the legal obligation
thereby imposed should be strict and absolute in nature and not (as the judge
found) a qualified obligation dependent upon the landlord being negligent in
the upkeep of his premises and having notice of the damage which the item of
disrepair was causing to the tenant.
23. “It s dependant as the judge found on notice”, or
“qualified” by that, well it’s all very well to say, dependant on what the
judge found, it is actually dependant on law. The appeal considers whether the
judge erred in judgment with regard to common law, hence the appeal. It is
therefore not dependant on what the judge decided in law as that is legally
being disputed and all the correct procedures and grounds have been put forward
for the court of appeal to analysis the judges decision in law. Therefore it
must be decided independently of what the judge said and correct law applied if
necessary. The laws applied are being disputed and not finding of fact as the
facts are dependant on common law ‘duty’ and in this case an ‘absolute’
liability only because we were covered by liability insurances as part of the
contractual obligation an expressed covenant.
So to look at notice we need to look at the authorities so
for example in the case of Hargrove which we had permission to appeal on using
that law, notice was given 2 days before a rainwater gutter flooded the
claimant’s premises. The court held that two days was enough notice. In the
claimants case here notice has not been analysised, although it was put before
the court by Ms Flores, at the appeal hearing as written evidence and stated as
follows.
NOTICE – us and them means the ‘Claimants and the
Defendants’.
104 stack us beginning of Sept 04 them 14th Sept
04
104 Flood us 24/06/05 them agreed
106 stack us 7th Feb 05 them agreed
1st pavement flooding us April 04 them Oct 04
2nd pavement flooding us beginning of June 06
them Aug 06
3rd pavement flooding us 20 June 08 them agreed
1st electricity cupboard water ingress to both
shops us June 05 them 1st Sept 05
2nd electricity cupboard water ingress to both
shops us June 06 them agreed
3rd electricity cupboard water ingress to both
shops us 13th May 08 them agreed
Fire exits locked us early 2005 them 19th Aug
2005
The time scale of leaks being repaired are the very reason
that the insurers believed that the CHA vitiated the insurance by not repairing
on time.
It would be odd if the insurance company namely an integral
part of the contract in the lease, can decide not to allow a claim on the basis
of ‘an act of ommission’ by the landlord failing to repair on time and yet the
court does not even look at those facts to reasonably analyse if that decision
was correct in contract law.
Notice was the subject of the 10 days trial in July-Sept
2010. The length of time to repair each soil stack leak, flood or the structure
are as follows and Ms Flores said the following in the court of appeal aloud as
well as orally stating thereafter some additional information as regards to the
consequences of this dispute even with notice;
106 premises – rainwater leak – 7 months to stop the water
ingress
104 premises - stack pipe leak – 4 months to stop the foul waste
ingress
106 premises – stack pipe leak – 2.5 months to stop the foul
waste ingress
104 premises – Flooding from above – 7 months for full
ceiling reinstatement
106 premises – rainwater leak – 4 months to stop the water
ingress
106 premises – rainwater leak – 24 months and fixed only
after repossession
Electricity Cupboard between premises – pipe leak in ceiling
– 3 years to locate
106 premises – Broken fire panel and smoke detectors –
claimants replaced
106 premises – Dangerous wiring throughout spurs not ringed–
claimants fixed
106 premises – No flooring paid for by public. Claimants had
to put one down.
106 premises – No security shutters to date although paid
for by public grant.
Between premises leading to fire exit – No emergency
lighting 3.2 years to fix
106 premises - No ventilation or airbricks rendering the
space illegal - not fixed.
Between premises – Fire exit locked and door swinging inward
– 3.2 years to fix
The entire building - Commercial & residential tenants,
no fire certificate to date.
Both premises – Breach of duty and of contract on leases
regarding building insurance, claims not being made, making the building
insurance void, so no payment for claimants when interrupted in business for
over 10 years on and off.
Harassment, bribery, fraud, trespass and eviction plus
putting the claimants through a to date three years court case (never mind an
outstanding 8 year claim on the building insurance) to defend the claims and be
reinstated to the premises.
Insurances never paid to date and shops unlawfully taken by
force.
Corruption at the trial with this ‘public body’ with many
connections to the judiciary not being recognised to date as is now European
Law that they have influence so a Judicial review needed.
Still dragging us claimants ‘acting in person’ through the
courts without legal representation as the insurances are paying their
‘defence’ (a commercial decision they are allowed to take FOS investigating)
‘legal costs’ and not ours as they have ‘triggered’ the ‘defending a claim’
clause when it is us that is the ‘defendant’ since we were unlawfully evicted.
The building insurance has no cover for ‘landlords and
tenants’ disputes (of trespass) but is defending them anyway to save the claim
on the liability insurances because it is in their interest to leave us on our
knees.
None of the above therefore has been dealt with in the draft
judgment with regard to the common law in giving ‘notice’ which could then
qualify a ‘duty’ in common law.
In our case that ‘duty’ is simply not necessitated as we are
contractually covered from day one as in an ‘absolute’ liability by liability
insurance POL on the buildings policy. Therefore the landlord’s only expressed
covenant and ‘duty’ was to make an insurance claim to have the repair fixed on
time/and or for POL from day one because the liability came from outside of the
retained parts for which POL covers and as stated we qualified for under two
assessments by two loss assessors for the building liability policy.
To deal briefly with Cockburn v Smith (although Hart v
Rogers a supplemental case is no longer an authority that the landlord who
retained the roof was under an ‘absolute’ duty to repair), it was held that the
landlord was under an obligation to take reasonable care once he had notice but
in that case the landlord had some express repair obligations to the common
parts. In our case the landlord had no express obligations (except to keep the
demised and the common parts the ‘development’ insured against all risks) to repair
and that was not argued. Notice was however argued as in a common law ‘duty to
take reasonable care’ initially but in the court of appeal no time was wasted
on the argument instead Ms Flores contended that in clause 5(22) of the lease
their was an implied obligation for the landlord not to break the terms of the
insurance so that in the landlords expressed obligation, monies could be laid
out once damage was done from premises retained by the landlord and outside of
Ms Flores demised premises. All parties were simply insured against the
occurrences that took place.
24.
Contract aside, the owner of adjoining
premises does, of course, have a liability in nuisance for damage caused by an
actionable interference with his neighbours’ enjoyment of their own
property. The nuisance may (and
usually does) consist of the lawful use of the defendant’s own land but matters
such as a blocked drain which causes water to overflow on to the neighbour’s
land have been held to be actionable: see Sedleigh-Denfield v O'Callaghan [1940] AC 880. In principle
therefore the blocked soil pipes were capable of amounting to a nuisance to the
tenants in this case but a cause of action based on tortious nuisance does not
assist them. It is now accepted
that liability in nuisance is fault-based and that the defendant must be shown
to have used his land in a way which he knows or ought to have foreseen would
cause damage to his neighbour.
This can include the adoption of pre-existing nuisances but in such
cases the defendant must be shown to have failed to remedy the problem once he
became aware of it: see Sedleigh-Denfield
v O'Callaghan (supra) at page 905.
24. Again here to deal with Sedleigh-Denfield v O’Callaghan
again this is notice-based law where a blocked drain was not made safe with a
grid over three years and finally caused trespass in foul sewage to the
claimant. It was held that the defendant failed to make the drain safe and
adopted the nuisance over the three-year period so despite notice damage was
eventually caused and held as such.
In our case it is again important in common law to look at
the above notice periods and ask that if after notice was given did the
defendants repair on time with the assistance of insurance or did they continue
a nuisance by their default in making insurance claims an expressed contractual
obligation. The insures say they failed to repair in a timely manner and caused
an act of omission. Does the court agree or not they had a ‘duty’ to make
insurance claims to repair upon notice?
25.
In the course of her oral
submissions Ms Flores referred to the rule in Rylands v Fletcher (1866) L.R. 1 Exch. 265 as a possible ground for strict liability on the
part of CHAL. The judge was not
asked to consider the case on this basis nor does this argument form part of
the grounds of appeal. But there
are in any event obvious difficulties about it. Liability under the rule in Rylands v Fletcher depends upon the defendant keeping on his land some inherently dangerous
thing which poses an exceptionally high risk of damage to neighbouring property
should it escape. In Transco
plc v Stockport Metropolitan Borough Council [2004] 2 AC 1 the House of Lords resisted the
call to integrate this principle of liability into the law of negligence on the
basis that the strict liability it imposes can be limited to this category of
case. Lord Bingham (at paragraph
10) said that:
“It has from the beginning been a necessary condition of liability under the
rule in Rylands v Fletcher that the thing which the defendant has brought on
his land should be "something which … will naturally do mischief if it
escape out of his land" (LR 1 Ex 265, 279 per Blackburn J),
"something dangerous …", "anything likely to do mischief if it
escapes", "something … harmless to others so long as it is confined
to his own property, but which he knows to be mischievous if it gets on his neighbour's" (p 280),
"anything which, if it should escape, may cause damage to his neighbour" (LR 3 HL 330,
340, per Lord Cranworth). The practical problem is of course to decide whether
in any given case the thing which has escaped satisfies this mischief or danger
test, a problem exacerbated by the fact that many things not ordinarily
regarded as sources of mischief or danger may none the less be capable of
proving to be such if they escape. I do not think this condition can be viewed
in complete isolation from the non-natural user condition to which I shall
shortly turn, but I think the cases decided by the House give a valuable
pointer. In Rylands v Fletcher itself the courts were
dealing with what Lord Cranworth (LR 3 HL 330, 342) called "a large
accumulated mass of water" stored up in a reservoir, and I have touched on
the historical context of the decision in paragraph 3(3) above. Rainham
Chemical Works [1921] 2 AC 465, 471, involved the storage of chemicals,
for the purpose of making munitions, which "exploded with terrific violence". In Attorney
General v Cory Bros & Co Ltd [1921] 1 AC 521, 525, 530, 534, 536,
the landslide in question was of what counsel described as an "enormous
mass of rubbish", some 500,000 tons of mineral waste tipped on a steep
hillside. In Cambridge Water [1994] 2 AC
264 the industrial solvents being used by the tannery were bound to cause
mischief in the event, unforeseen on the facts, that they percolated down to
the water table. These cases are in sharp contrast with those arising out of
escape from a domestic water supply (such as Carstairs v Taylor
(1871) LR 6 Ex 217, Ross v Fedden (1872) 26
LT 966 or Anderson v Oppenheimer (1880) 5
QBD 602) which, although decided on other grounds, would seem to me to fail the
mischief or danger test. Bearing in mind the historical origin of the rule, and
also that its effect is to impose liability in the absence of negligence for an
isolated occurrence, I do not think the mischief or danger test should be at
all easily satisfied. It must be shown that the defendant has done something
which he recognised, or
judged by the standards appropriate at the relevant place and time, he ought
reasonably to have recognised, as
giving rise to an exceptionally high risk of danger or mischief if there should
be an escape, however unlikely an escape may have been thought to be.”
25. Rylands v Fletcher here in the draft it states that
Rylands v Fletcher was not argued except orally by Ms Flores and yet the
advocate’s statement and the skeleton makes reference to the case as follows;
45. Ground 1 of
the Amended Grounds of Appeal is that:
The judge misdirected
himself in law as to the extent of a landlord’s
liability for damage
caused to demised premises by a defect in another
part of same building
which is retained under the ownership and
control of the
landlord. He ought to have directed himself that the
landlord was liable to
the tenant for all loss caused by the defect and
not simply for such
loss as is suffered after the landlord has had
knowledge of the defect
and a reasonable opportunity to remedy the
defect.
46. The judge’s error
was to hold that the landlord’s only duty was to repair the
48 Transcript of Judgment p40 para [3]
49 Transcript of Judgment pp47-48 para [18]
50 Lease, clause 5((6) at p93 and p126
51 Transcript of Judgment p43 para [8]
52 Transcript of Judgment pp42-43 para [7] and
[8]
10
defect in the retained
premises “as soon as reasonably practicable after he
knows it is causing
damage to [the demised premises]”.53 With respect that
cannot be the law. If
it were, a landlord could let premises encapsulated within
a building, of which he
otherwise retained ownership and control, and let
those parts fall to
ruin. Even if the defects in the other parts frequently caused
damage to the demised
premises, his only duty would be to attend to the
specific item of repair
and prevent it causing further damage. If it re-occurred,
or another defect caused
damage in the demised premises, the landlord would
again not be liable in
damages provided the defect was rectified reasonably
quickly after his
having notice of it.
47. It is not
impossible to imagine cases (and this case may be a paradigm) in
which a series of
defects, each in turn repaired reasonably promptly by the
landlord, successively
causes such damage to the demised premises that they
are rendered worthless
but in respect of which loss of use or value the landlord
(by prompt
after-the-event repairs in each case) escapes liability.
48. The judge ought to
have used the ‘duty’ he identified in Duke of Westminster v
Guild [1985] QB 688 as a basis for holding that the
liability of such a landlord
arises as soon as the
defect in the part retained by him causes damage to the
demised premises.
The Learned Judge
placed substantial weight on the case of Duke of Westminster v Guild [1985]
Q.B. 688. In that case, at page 701, Slade L.J. said as follows:
“There is a general
principle established by such cases as Hargroves, Aronson & Co. v.
Hartopp [1905] 1 K.B. 472 and Cockburn v. Smith [1924] 2 K.B. 119 which
is summarised, in our opinion accurately, in Woodfall, Landlord and Tenant,
28th ed. (1978), vol. 1, para. 1-1469, p. 621:
"Where the
lessor retains in his possession and control something ancillary to the
premises demised, such as a roof or staircase, the maintenance of which in
proper repair is necessary for the protection of the demised premises or the
safe enjoyment of them by the tenant, the lessor is under an obligation to take
reasonable care that the premises retained in his occupation are not in such a
condition as to cause damage to the tenant or to the premises demised."
In Hargroves,
Aronson & Co. v. Hartopp [1905] 1 K.B. 472 the plaintiffs were tenants
of a floor in a building of which the defendants were the landlords. A
rainwater gutter in the roof became stopped up and the defendants failed to
clear it out for a few days after receiving notice of the stoppage. They were
held to be in breach of a duty of care to the plaintiffs and liable for the
damage done. In Cockburn v. Smith [1924] 2 K.B. 119 the facts were
similar and the defendant landlords were held liable to the tenant for damage
suffered by her as a result of defects in the guttering of the roof of the
building of which the landlord retained control. Scrutton L.J. considered, at
p. 133, that the landlord's duty was based on "that modified doctrine of Rylands v. Fletcher (1868) L.R. 3 H.L. 330 which is applicable where he retains in his
control an artificial construction which becomes a source of danger to his
tenant." Bankes and Sargant L.JJ. preferred not to decide whether the
relevant duty arose out of a contract between the parties or whether it was an
instance of the duty imposed by law upon an occupier of premises to take
reasonable care that the condition of his premises does not cause damage: see [1924]
2 K.B. 119 , 130 and 134. But they expressed no doubt that the relevant
duty existed.”
49. The judge seems to
have imported requirements that, before any liability can
arise, there must be:
(1) knowledge or notice of a need for repair on the part
of the landlord; and
(2) a reasonable opportunity for repairs to be carried out.
That puts the tenant of
‘enveloped’ premises in a seriously vulnerable
position.
50. The correct
approach would be to hold that the landlord is usually absolutely
liable if a defect in
the non-demised premises causes damage to the premises
demised. That would put
the landlord subject to the Guild duty in no different
position from any other
landlord who owes a duty to keep defects in retained
parts from damaging the
demise. As Carnwath LJ (as he then was) said in
Earle v Charalambous [2006] EWCA Civ 1090:54
“In applying a standard
lessor's repairing covenant, the law draws a
distinction between
disrepair in the demised premises themselves, and
disrepair in other
parts of the building within the lessor's control. In
53 Transcript of Judgment p47 para [18]
54 At [8]
11
the latter case the
"general rule" applies: that is, the covenant requires
the lessor to keep the
premises in repair at all times, and he is in
breach immediately a
defect occurs (British Telecommunications plc
v Sun Life plc [1996] Ch 69).”
Although it can be said the landlord has no expressed repairing
covenant in the leases they do have an expressed covenant in the leases to
insure against ‘all risks’ that could cause damage to the demise which can be
said is the same thing under different construction. The Earle v Charalambous case is used to
outline the accepted ‘general rule’ that requires the ‘lessor to keep in repair
at all times’ and it hi-lights what is meant by the definition of ‘at all
times’ in terms of construction and meaning of the words, even if it is as with
this case, within the insurance policy, which are in this case attached
inextricably to the leases and landlords obligations and specifically require
the landlord to keep the retained premises in repair ‘at all times’ (including
pipes and anything that causes water ingresses). It can
be said as an authority that the construction of words in the policy ‘at all
times’ to keep (the pipes) in repair is the ‘general rule’ and therefore
‘absolute liability’ is attached to this case upon failure to do so and is in
this case the negligence causing nuisance that voided the policy. It is
therefore a Rylands v Fletcher case. In all of
the disrepair that affected the premises none of the items of disrepair served
the claimants premises or was for the use of the premises what so ever. In Rylands v Fletcher, “the person who for his own
purpose brings on his lands and collects and keeps there anything likely to do
mischief, if it escapes, must keep it in at his own peril, and if he does not
do so, is prima (fact) facie answerable for all the damage which is the natural
consequence of its escape.
Further in both leases the landlord retained rights to enter the demise to
repair and
at the permission to amend hearing HHJ Cowell said, “at any rate the issues arising from the law of nuisance are sufficiently
pleaded in terms of FACT in the pleadings.”
It would therefore
be hard to say that this argument does not form part of the grounds of appeal
as the draft says as one can see above it clearly does.
In dealing with the issue however which the draft then does
of Rylands and Fletcher a number of authorities are cited to give reason as to
why no stricter liability at common law in terms of an implied obligation to
repair after notice should exist other than what is already contractual and has
therefore remedy.
In the draft however we then see a lengthy set of quotations
of various laws to suit the argument brought about by the claimants to the
appeal using Barrett v Lounova. Barrett v Lounova was held that the defendant
should have an implied obligation to repair the exterior of the premises
despite no expressed obligation to do so where the tenant has an expressed
obligation to repair the interior of the demise and it was argued that without
such implied obligation on the part of the landlord to repair the exterior, the
interior could become a futile exercise of repair.
First the draft mentions the laws relied on by HHJ Cowell.
Gordon and Teixeira v Selico Co Ltd but in this case the fraud was committed by
a third party.
He mentions Duke of Westminster v Guild but in this case the
nuisance came from the claimants own land and caused a trespass to the
defendants land.
The draft then goes on and says that HHJ Cowell quoted
Bankes LJ in the case of Cockburn v Smith and explains a want of reasonable
care after notice where he is given notice and fails to repair.
The draft says that HHJ Cowell mentions Carstairs v Taylor
but this was a case where an animal caused the said leak and this was deemed as
an act of God not the fault of the landlord.
The draft also says that HHJ Cowell mentions Hargrove v
Hartopp but this was a case where it was said that it was too late to say that
the defendant should have insured against damage and held that after notice the
landlord was liable to the tenant to clear a gutter that caused damage to the
tenant.
The writer of the draft in our case in the court of appeal
goes on to then quote LJ Scrutton and his concerns over whether the issues
brought up arise in tort or in contract and the legal implication left open. He
concludes that LJ Scrutton thinks it is tort. A duty to take reasonable care
not to cause nuisance.
As for the legal implication left open as to tort or
contract the writer of the draft mentions another case that merits a possible
answer to that legal implication Gordon v Selico Co Ltd and says that Goulding
J expressed the view of whether there was a gap in the instrument (ie the
leases) and said it was more natural to fill the gap by implication, ie an
implied duty, than by the law of tort. He used a leading authority Liverpool
City Council v Irwin in his thinking on the matter. That was a case of large
dwellings where cisterns overflowed and vandalism was on the estate but it is a
case where the housing act 1961 section 32 came into play and although no express
repair obligations fell on the landlord the court decided some could be implied
in their absence to make sense of the instrument to keep the common parts in
repair and easements in working order. In this case it was seen as an
incomplete contract and necessitated an implied obligation rather than many
cases of tort. In effect it made the system now workable for good rather than
having case after case claiming nuisance in tort so it was a more effective
longstanding decision.
26.
It is
also necessary as part of this test to show that the use by the defendant of
his land for the purpose of accommodating the dangerous operation or
installation falls within what Blackburn J in Rylands v Fletcher called the
non-natural use of his land. The use
in question must therefore be extraordinary and unusual in contrast to, for
example, a domestic water supply or lavatory which are neither. It is therefore well established that
the tenants cannot sue under Rylands v
Fletcher for damage caused by defective guttering or
leaks in water pipes retained by the landlord in the absence of proving
negligence: see Carstairs v Taylor (1871) LR 6 Ex 217; Prosser& Son Ltd v Levy [1955] 1 WLR 1224. The same principle must apply to the
soil pipes in this case.
27.
Judge Cowell was persuaded that any
liability based on the landlord’s retention of the external and upper parts of
the building depended upon proof of negligence and notice. He based his judgment for the tenants
in relation to the delay in repairing the soil pipe at 106 on the legal duty
described in Cockburn v Smith (supra) and later considered in Duke of Westminster v Guild [1985] 1 QB 688 and Gordon and Teixeira v Selico Co Ltd (1986) 18 HLR 219.
28.
In Cockburn v Smith the landlord was sued for damage caused to a
tenant’s flat by a leak of rainwater from a defective gutter which was excluded
from the demise. The landlord had
been put on notice of the defect but failed to take reasonable steps to repair
it. Bankes LJ (at page 129) said
that:
“It cannot now be
suggested that there was any agreement express or implied which can accurately
be described as an agreement to repair the roof or the guttering; but there is
a line of authorities to show that a landlord is under an obligation to take
reasonable care that the premises retained in his occupation are not in such a
condition as to cause damage to the parts demised to others. In some of these
authorities it was not necessary to decide the point expressly, because in the
opinion of the Court there was no want of reasonable care; but three of these
cases indicate that if it had been necessary to define the duty of the
defendant it would have been defined in the terms I have suggested.”
29.
He then referred to Carstairs v. Taylor and Hargroves
& Co. v. Hartopp and continued (at page 130):
“Whether this duty
arises out of a contract between the parties, or whether it is an instance of
the duty imposed by law upon an occupier of premises to take reasonable care
that the condition of his premises does not cause damage, I prefer not to
decide. Lord Buckmaster speaks of it as a contractual obligation (3), and Greer
J. as arising out of contract. There is much to be said for that view, but it
is an immaterial question. If the duty is imposed by law, the point on which
Greer J. decided in favour of the respondent does not arise, and the
appellant's right to damages is clear as soon as it is established that the
respondents were guilty of negligence.”
30.
Scrutton LJ (at page 132) thought that liability was
tortious and based on a modification of the rule in Rylands v
Fletcher to a duty
to take reasonable care to ensure that no damage was caused. This is the principle in operation in
cases like Carstairs v. Taylor and in Duke of Westminster v Guild this court
confirmed that the landlord’s liability under the principle applied in Cockburn v Smith was based on a duty to take reasonable care to
ensure that the retained premises were not in such a condition as to cause
damage to the tenant. It left open
the question whether the legal basis for the duty lay in contract or in tort
but in Gordon v Selico Co Ltd, Goulding J ([1985] 2 EGLR 79) expressed the view (at page 84) that:
“the better
characterisation of the alleged duty of the lessor is as an implied term. Where
there are gaps in an instrument expressing the reciprocal obligations of
landlord and tenant, it is, in my judgment, more natural to fill them by
implication, as the House of Lords did in Liverpool City Council v Irwin [1977] AC 239,
than to invoke the law of
tort.”
31.
In
the Court of Appeal this passage was referred to by Slade LJ without criticism
and it seems to me that we should treat this line of authority as establishing
that the obligation on the landlord to repair in these cases is based on an
implied term. Ultimately the precise
juristic basis of liability may not matter in cases where, as here, the parties
have a contractual relationship under the terms of the lease. Whether the duty imposed on the
landlord to take reasonable care of the retained premises arises in tort or
contract, the court has still to consider whether the express scheme of repair
or insurance imposed by the lease excludes any other form of liability which
the law might otherwise impose. The tenants’ appeal on liability in this case depends
not only on establishing that a liability on the landlord to keep the retained
parts in repair should be implied or imposed over and above the express terms
of the two leases but also that the implied obligation to repair should be absolute
in nature in the sense that the landlord became liable for the consequences of
the disrepair as soon as it occurred regardless of whether he had or should
have had notice of the defect.
32.
The second point is not open
to the tenants in this court insofar as they base their claim for damages on
the line of authority culminating in Gordon v Selico Ltd. The Court of Appeal has decided in those cases that any
liability derived from the position of the landlord as an adjoining occupier is
based on negligence and notice and we are bound to follow those decisions. If an implied obligation to repair
regardless of notice is to be established then it has to be contractual and to
be based on some other factors beyond the landlord’s control of the external
and upper parts of the building in which the demised premises are
situated. And in that alternative
context (whatever it may be) it is still necessary to consider Ms Bhaloo’s
argument that the implication of any such term is precluded by the scheme of
the lease.
32. The
writer of the draft says that the second point “that the implied obligation to repair should be absolute in nature in the
sense that the landlord became liable for the consequences of the disrepair as
soon as it occurred regardless of whether he had or should have had notice of
the defect” is not open to the tenant to plead as the writer suggests that the
claimants follow the line of authority of Gordon and Teixeira v
Selico Co Ltd but as stated before, in this case the fraud was committed by a
third party and I cannot see how now saying that the claimant is now not open
to arguing the implied obligation of clause 5(22) by the landlord has anything
to do with this one authority. As a matter of fact the defendant brought the
authority at a later stage on day 2 to the court of appeal and the claimant was
given little if any time to argue it. I reiterate that the leases obligations
are that of the landlord and tenant or their servants or agents. The landlords
third party has little if anything to do with the fact that they the landlord
vitiated the insurance. Had it been a case where the insurers had done wrong
then we together with the landlord would be suing the insurers the landlords
agent. In terms of our relationship to the insurers it has been strictly through
the landlord and any contact we have with them has been through the landlord so
far as was limited to assess the claim in this case. In the lease it says other
than rent all monies will be received by the landlord to make good. The special
fact that the insurance reimbursed the claimants directly for some material
damage is because the landlord did not repair the material damage on some
occasions and the claimants were put to paying to mitigate further
consequential losses and to be able to trade without effectively going out of
business due to the landlords failure to repair so we were therefore
reimbursed.
The second point therefore remains in that the landlord
was absolutely liable because insurances were in place for liability for damage
including business interruption because of any of the insured risks outside of
the demise affecting the demised premises. That is quite clear and should not
be made out to be something that makes it different from what was pleaded at
the court of appeal.
The writer says of the “The
Court of Appeal has decided in those cases that any liability derived from the
position of the landlord as an adjoining occupier is based on negligence and
notice and we are bound to follow those decisions.”
Further with regard to the Gordon
and Teixeira v Selico Co Ltd case notice
was given and there is a serious failing here to address it and as stated has
not been assessed in common law at the court of appeal even on the basis that
we may have followed that line of thinking which we did not and said we did not
seek to.
“If an implied obligation to
repair regardless of notice is to be established then it has to be contractual”
we contend that is is contractual in that we were insured for absolute
liability under the insured risks we had paid for if damage was to come from
sources retained by the landlord such as a neighbours flat but not occupyer as
that would suggest a common household for which has been established there was
none and no easements either.
Futher Ms Bhaloo has not
suggested an alternative she has argued on the grounds of notice and a
reasonable opportunity to repair. She has not once argued that the instrument
is complete without an implied covenant to not cause the insurance to be
vitiated under 5(22) she merely defendended the argument by saying that it may
have been deliberately left out by the architect of the lease and that is not a
good argument. The landlord breaching the terms of the insurance has left the
claimant without compensation for business interuption yet they still paid the
bills, rent and business rates as well as were put to taking out loans to
sustain there position without being able to trade due to the landlord being
unable to compensate them or making any application for cessor of rent. This
unduly enriched the landlord whilst they were covered by insurances for which
they contractually made the claimants pay towards. There can be no argument
that the landlord breached the terms of the insurance as all Judges to date
except the court of appeal (who have in the draft judgment failed to state it)
have said as fact that they did, therefore an implied covenant to clause 5(22)
is necessary to the instrument of the leases to ensure it is not absurd and
that in this case and any future case a landlord cannot commit an act of
ommission and in doing so vitiate the insurance and make the leaseholder pay
for it by further consequential losses.
If it were to be the case
every leaseholder in Great Britain should be worried that a landlord can simply
break the terms of the insurance of their house and put them through a court
case to prove tort with their insurer backing them to save a claim, which I am
sure the court of appeal could not be responsible for in law as this would be
then a case for.
33.
Reference was made in the Advocate’s Statement to the judgment
of Carnwath LJ in Earle v Charalambous [2006] EWCA Civ 1090 who, in the context
of a claim for damages for breach of a lessor’s covenant to repair the roof of
a building containing residential flats, said (at [8] of the addendum) that:
“In applying a standard lessor's repairing
covenant, the law draws a distinction between disrepair in the demised premises
themselves, and disrepair in other parts of the building within the lessor's
control. In the latter case the "general rule" applies: that is, the
covenant requires the lessor to keep the premises in repair at all times, and
he is in breach immediately a defect occurs (British Telecommunications plc
v Sun Life plc [1996] Ch 69). In the former case, by contrast, there is no
breach until the lessor has had notice of the defect and a reasonable time to
carry out the necessary remedial works (ibid; O'Brien v Robinson [1973] AC 912). In BT (at p 79),
Nourse LJ accepted that there might be other exceptions to the "general rule",
for example if the defect is caused by an occurrence wholly outside the
lessor's control.”
33. The writer of the draft of
Judgment goes on to mention British Telecommunications plc v
Sun Life plc [1996] Ch 69 which is a case about the writing of a lease and
the actual meaning in construction of leases of the
words ‘to keep in repair’ and so it was judged in that case and now is accepted
in law as to be the ‘general rule’, that ‘to keep in repair’ means, the
landlords retained premises are to be kept in repair “at all times”.
The writer then mentions as
stated ‘by contrast’, an authority that is actually an ‘exception’ to the rule
as the writer must know and says it is the ‘standard rule’. It is the case of O’Brien v Robinson
which is a case where the claimants suggested to their landlord after
complaining of noise that their bedroom ceiling may fall down due to dancing
above. In effect by saying that the ceiling might fall down to the landlord it
was regarded as ‘notice’ of the possiblity that the dancing could cause their
bedroom ceiling to fall down and established in this excetional case with
‘special facts’ that ‘before a breach of duty can arise notice must be given’.
But this ruling has often has been critised as being the
exception rather than the standard rule. A hairline crack on the ceiling was not
visible for 3 years to the tenant nor the landlord before the ceiling actually
fell down and the landlord pleaded that they had to give notice if the defect
was on their own premises and the landlord could not see it to make any
investigations or had had a resonable opportuniy to fix it . Therefore notice
was based on it being invisible which was never our case if we are to use an
exceptional authority as the contrast, that is just unacceptable. The general
rule therefore must be in contruction with regard to the insured risks clause
7(2) to keep in repair ‘at all times’ insured risks. This is then an absolute
liability as covered with liability insurance for damage that comes from
outside of our premises where notice in our case has been given/ and or notice
is not necessary as the defects are in the retained parts.
The writer then says quoting
LJ Norse that there can be exceptions to the rules like when the occurrence of
damage is wholly outside of the landlords control.
34.
But the general rule referred to is one derived from the
construction of a landlord’s express covenant to keep the retained premises in repair. The general rule is that this should be interpreted as
imposing on the landlord a duty to keep the retained premises in repair at all
times so that liability depends upon disrepair and not upon notice of
disrepair. But the issue here is
not how one construes such a covenant but rather whether a covenant to that
effect can be implied into these particular leases.
34. The writer wonders if in
the case of British Telecommunications plc v Sun Life plc [1996]
Ch 69 above which is about ‘construction’ of the
lease/instrument, whether or not this construction in that case as an implied
covenant can be used in our leases in reality, ‘to keep in repair, at all
times’ parts retained by the landlord.
In clause 5(22) of the leases
it says as a leaseholders obligation that if we break the terms of the
insurance by any act that vitiates the insured risks, we shall forthwith pay
the cost of re-building or cover any would be insured risks ourselves as a natural
consequence of us voiding the policy which would only be fair and we signed the
leases as such to accept those potential events.
It follows that insurances are
in place for the development as to amount to an insured repairing covenant of
parts of the building not demised to us and that we should in no way affect
those parts in becoming un-insured or we would be responsible for that in the
contract of the lease clause 5(22).
We conclude that the same
implied covenant should apply because of the expressed covenant to keep the
rest of the building, the development, in repair “at all times” covered by an
insured risk.
35.
Quite apart from the general point relied upon by CHAL about
the scheme of the two leases, there are, I think, obvious difficulties about
attributing to the parties an intention to impose on the landlord an implied
obligation to repair which is stricter in effect than would be imposed by law
based on his control of the building.
As already explained, that obligation is based on notice and corresponds
in scope to the landlord’s obligation to repair defects in the demised premises
themselves which only arises when facts come to his attention which would put a
reasonable landlord on inquiry as to whether works of repair are needed: see O’Brien v Robinson [1973] AC 912.
35. The writer begs the question if the liability is
stricter than common law by the implication of a clause then it there is
difficulties for the writer to impose an implied clause on those grounds.
However the writer has never explored notice given in the draft judgment nor
applied a ‘duty’ in common law which the lease does not have due to there being
no expressed repairing obligations. So it goes without saying that the lease to
any reasonable person, does not cater for the eventuality that the landlord’s
scheme of repair could be vitiated by the landlord meaning an implied term
would be necessary to give the commercial lease business efficacy or else in
the event of disrepair the landlord could repair at any time rendering the
premises worthless if a succession of leaks were to occur as was our case. They
have a duty by the general rule to comply with the expressed terms of the
insurance to keep the premises and retained parts in repair ‘at all times’.
The writer of the draft judgment says, “As already
explained, that obligation is based on notice and corresponds in scope to the
landlord’s obligation to repair defects in the demised premises themselves
which only arises when facts come to his attention which would put a reasonable
landlord on inquiry as to whether works of repair are needed: see O’Brien v Robinson [1973] AC 912.” But I
think that that is sufficiently dealt with above.
36.
It is noteworthy that in Liverpool
City Council v Irwin [1977] AC 239 the implied contractual obligation
imposed on the City Council to repair the common parts which they retained such
as the lifts, staircases, rubbish chutes and passages, took the form of an
obligation to take reasonable care to keep them in reasonable repair even
though they were crucial to the tenant’s enjoyment of the building and their
own flats. Lord Wilberforce (at
page 256) said that:
“It remains to
define the standard. My Lords, if, as I think, the test of the existence of the
term is necessity the standard must surely not exceed what is necessary having
regard to the circumstances. To imply an absolute obligation to repair would go
beyond what is a necessary legal incident and would indeed be unreasonable. An
obligation to take reasonable care to keep in reasonable repair and usability
is what fits the requirements of the case. Such a definition involves - and I
think rightly - recognition that the tenants themselves have their
responsibilities. What it is reasonable to expect of a landlord has a clear
relation to what a reasonable set of tenants should do for themselves.”
36. However the writer draws our attention to the point
again and in doing so quotes Lord Wilberforce as perhaps qualifying the above
with the case of Liverpool City Council v
Irwin and concludes with Lord Wilberforce saying about the necessity to
have an implied clause as opposed to what an occupier can reasonably do for
themselves. In that case the landlord owned a block of flats and did not keep
the common parts lifts, staircases, chutes in good order so the contract was
incomplete to allow everyday living absent of an implied repair covenant by the
landlord to repair the common parts to be liveable for the tenants. Perhaps
this case shows necessity for an implied clause as does our case.
37.
At page 269B-D Lord Edmund-Davies said that:
“The next question that arises is: what is the nature and extent of such
obligation? In other words, is it absolute or qualified? If the former, any
failure to maintain (save of a wholly minimal kind) would involve a breach of
the landlord's obligation, and in Hart v. Rogers [1916] 1 K.B.
646 Scrutton J. considered, at p. 650, that such was the view taken by the
court in Miller v. Hancock [1893] 2 Q.B. 177. But
later decisions, such as Dunster v. Hollis [1918] 2 K.B.
795 and Cockburn v. Smith [1924] 2 K.B. 119, treat the duty only as one of
reasonable care, and such is the conclusion I have come to also. To impose an
absolute duty upon the landlords in the case of buildings in multiple
occupation would, I think, involve such a wide departure from the ordinary law
relating to easements that it ought not to be held to exist unless expressly
undertaken and should not be implied.”
37. Further the writer quotes Lord Edmund-Davies who ponders
on the question of whether that is an absolute duty to repair the common parts
or whether it is qualified by special facts as to amount to a breach in the
landlords obligations.
He looked at the case of Hart v Rogers (which is no longer
an authority) where the landlord did not repair the roof which leaked into the
claimant’s premises and this was outside of their control so was seen as an
absolute liable case. LJ Scrutton in the Hart v Rogers case looked at another
case of Miller v Hancock when deciding the outcome. This was a case where the
claimant’s visitor fell down the stairs because they were worn and defective
and it was held that there was a duty to keep the staircase/common parts in
repair, as the landlord must have known that visitors may attend. However later
cases, which the writer quotes, say that there is only a ‘duty’ to take
reasonable care. Lord Edmund-Davis conclude that in a building of multiple
occupations with easements (meaning of use to all) there can only be a ‘duty’
to take reasonable care.
In our case there was no easements and we were commercial
leaseholders for which section 11 does not apply. We happen to have leased
shops underneath a multiple occupation development but that is a far cry from
being ‘in’ a building of multiple occupation where special facts and enjoyments
are applicable as to the residents tenancy agreement. Most commercial premises
(as we were here with three stories above us) are underneath flats of some sort
or other on every high street and the landlord may be the same for both
premises but that does not lump them altogether as each entity has special
rights that are contractually based or tenancy based. Therefore neither
contract can affect the other. If however the landlord insures as a whole, it
must be noted as fact in this case, that each insurance as with our building
insurance is seen as being separately insured as if no relationship existed
except to make claims through the landlord. It must also be noted that the
lease forbids us to take out separate building insurance except through the
landlords scheme, which is seen as wholly separate.
38.
It is said that the judge should have held that the tenants’
express obligations under the leases to repair the demised premises were
matched by a correlative implied obligation on the part of the landlord to keep
in repair the retained parts of the building. Reference was made to the decision of the Court of Appeal in
Barrett v Lounova (1982) Ltd [1990] 1
QB 348 where the tenant covenanted to keep the interior of the demised premises
in good repair but there were no covenants by either tenant or landlord in
relation to the external structure. The court implied a covenant by the landlord to repair the
exterior on the basis that, without it, the tenant would over time find it
physically impossible to comply with his own covenant. I do not think that we get much
assistance from this decision.
There is no suggestion that the implied obligation to repair was absolute
in nature and the court was not faced (as in this case) with a lease which
imposed on the landlord the insurance obligations contained in clause 7(2). In this case it cannot be said that the
tenant is left without remedy in the case of any disrepair of the
structure. That constitutes an
insurable risk and the landlord is required under the terms of the leases of
104 and 106 to apply the insurance monies in making good the damage and
disrepair.
38. Starts with “It is said” and this does not make sense,
who said it? Actually it was referring to clause 5(22) and Barrett v Lounova
was cited to suggest an implied covenant to cluase 5(22). This does not
indicate at any stretch of the imagination that another case and their special
facts ie Barrett v Lounova required our case to have the exact same correlative
implications. The case was used as an authority to show that sometimes an
implied obligation is necessary to give business efficacy as was held, in the
special facts of the case of Barrett v Lounova, where the leaseholder as with
our case had repairing obligations to repair the interior of the premises alone
and the landlord as in this case and ours had none to repair the exterior and
thus failing any repair of the exterior, which had to fall on someone and that
someone was judged to be the landlord, the interior could not be kept in
repair. So the same principle is in our case. If the landlord breaches the
terms of the insurance and we cannot get repairs done or claim compensation
when put out of business by an insured risk, there should be an implied
covenant to keep the building insured and not invalidate the insurance or the
contract has no business efficacy and therefore needs an implied clause to
5(22) for the landlord to comply correlatively with their expressed covenant to
keep the premises insured at all times. This is similar to an implied repairing
covenant as in the case of Barrett v Lounova because in the absence of one, a
disrepair condition of the premises makes the commercial premises unworkable in
contract without insurance being in place for the disrepair/risks.
However after mentioning the above case the writer says;
“There is no suggestion that the implied obligation to
repair was absolute in nature and the court was not faced (as in this case)
with a lease which imposed on the landlord the insurance obligations contained
in clause 7(2). In this case it
cannot be said that the tenant is left without remedy in the case of any
disrepair of the structure. That
constitutes an insurable risk and the landlord is required under the terms of
the leases of 104 and 106 to apply the insurance monies in making good the
damage and disrepair.”
That is absolutely correct and failing to keep the premises
in repair by vitiating the insurance means they have broken a contractual
obligation!
39.
Of much greater assistance are the decisions of this court in
Gordon v
Selico (supra) and in Adami v Lincoln Grange Management Ltd [1998] 1 EGLR 58. In Gordon v Selico the court accepted that the imposition on the
tenants of a scheme under which they each contributed to a maintenance account
to be used in the repair and maintenance of the structure of a block of flats
was sufficient to exclude the implication of any obligation on the part of the
landlord to carry out such repairs.
Slade LJ said that:
“Mr Sunnucks has
submitted that, having regard to the comprehensive nature of the provisions of
the lease relating to the repair and maintenance of Flat C and of the block,
Court Mansions, as a whole, this is not a case where the learned judge was
justified in implying any covenants relating to these matters. The lease, he
pointed out, is in an unusual form, providing as it does for the repair and maintenance
of the building by a system of express covenants and trusts. If the defendants
are in breach of any of those express provisions relating to repair and
maintenance, the proper remedy, in his submission, is by reference to the
agreed system and not by reference to suggested implied covenants to which the
parties never agreed.
We think this
submission is correct and indeed in this court Mr Brock, on behalf of the
plaintiffs, has not sought seriously to challenge it. Where a written tenancy
agreement relating to a flat, forming part of a larger building in multiple
occupation, manifestly does not embody the complete agreement between the
parties the court may well be willing to supplement the written document by
implying terms placing obligations on one party or the other. Such a case was Liverpool City Council v Irwin [1977] AC 239,
where the “conditions of
tenancy” which tenants were required to sign related only to the obligations on
the part of the tenants, not of the lessor council. However, as Lord
Wilberforce observed in that case (at p 254), “such obligation should be read
into the contract as the nature of the contract itself implicitly requires no
more, no less: a test in other words of necessity”. Lord Cross in the same case
said (p 258) that the court “must be able to say that the insertion of the term
is necessary to give — as it is put — 'business efficacy' to the contract and
that if its absence had been pointed out at the time both parties — assuming
them to have been reasonable men — would have agreed without hesitation to its
insertion”. The repair and maintenance scheme provided by this lease is a very
cumbersome one and we agree with the learned judge that, even if the lessors
and their agents were duly to carry out their obligations, the scheme might not
always suffice to give the lessees necessary and timely protection — for
example, as he pointed out, through the continued inability or refusal of other
lessees to pay their proper contribution. Nevertheless, on a reading of the
lease, we feel little doubt that it was intended, by all parties, to provide a
comprehensive code in regard to repair and maintenance of the block. We are by
no means satisfied that the implication of any further terms in this respect is
necessary to give the lease business efficacy, or that the lessor, assuming it
to have been a reasonable person, would have “agreed without hesitation” to the
insertion of the suggested implied additional terms relating to the repair and
maintenance of the block.”
39. Again the writer refers to repairing obligations (that
were not pleaded) in referring to the case of Adami v Lincoln Grange Management
Ltd and Gordon v Selico, where there is as is with our case a comprehensive
insurance scheme to deal with repairs.
The writer quotes LJ Slade (many of the LJ’s quotes are from
LJ’s at enterprise chambers of the defendants counsel it should be noted) as referring
to Mr Sunnucks saying, “If the
defendants are in breach of any of those express provisions relating to repair
and maintenance, the proper remedy, in his submission, is by reference to the
agreed system and not by reference to suggested implied covenants to which the
parties never agreed.” And we utterly agree with LJ Slade’ sentiment we are not
looking to seek an implied covenant to repair we are seeking an implied
covenant with regard to the insurance repairing scheme being kept in place at
all times. Further we agreed with Justice Clarke at the original hearing when
he said that we were to match disrepair with the insured risk and take the
claim to the county court to assess. That is what we have done throughout and
yet are constantly being put to justifying common law repairing obligations
instead of contract is what has bedevilled this case throughout. Every single
Particular of the Claim and further in great detail in the claimants submissions
on liability states that the landlord failed to keep the insurance in place
and/or make claims. Even the writer digresses to another allegation of repair
implications as if the requested implied covenant of clause 5(22) and its
corrective application did not make any appearance in the proceedings at the
appeal whatsoever. Ms Flores was clear she had two points in law which were an
implied covenant should applied and that should make the case absolute in
liability from the moment of damage from the retained parts as covered by the
insurances under the POL scheme. It would seem by a clever use of wording and
many delay tactics throughout this 5-year case we have departed from the real
issues of liability, that we all were insured for it.
Back to LJ Slade he went on to say;
“Where a written
tenancy agreement relating to a flat, forming part of a larger building in
multiple occupation, manifestly does not embody the complete agreement between
the parties the court may well be willing to supplement the written document by
implying terms placing obligations on one party or the other. Such a case was Liverpool City Council v Irwin
[1977] AC 239, where the “conditions of tenancy” which tenants were required to
sign related only to the obligations on the part of the tenants, not of the
lessor council.”
However Lord
Wilberforce then said; “such obligation should be read into the contract as the
nature of the contract itself implicitly requires no more, no less: a test in
other words of necessity”
And Lord Cross
Chelsea of which Ms Flores also cited in the court of appeal said
that the court;
“must be able to say that the insertion of the term is necessary to give — as
it is put — 'business efficacy' to the contract and that if its absence had
been pointed out at the time both parties — assuming them to have been
reasonable men — would have agreed without hesitation to its insertion”.
The two cases quoted have special facts but the sentiment of
the Lords above remain the same so as to judge those individual cases on their
special facts.
The facts therefore in the case of Gordon v Selico are that
a third party covered up dry rot before the leaseholders took on the lease.
There could be no implied term for fraud of the third party that covered the
contract between the two parties.
In the case of Adami v Lincoln Grange Management Ltd this
was a subsidence case where new management Grange took over a long lease of the
claimant and put in a provision for subsidence. The original lease was
preferred and referred to throughout the trail by the claimant, who as Ms
Flores said in court quoting the case seemed like a cantankerous man who wanted
the lease to remain the same and the insurance scheme with it but by adopting
the scheme by payment he had even though he objected to it inadvertently gone
along with it. He decided to use insurance monies laid out when subsidence
occurred to fix this problem himself but then made a claim for extras. It was
decided that no implied term in either lease should apply as the scheme for
which he went along with provided for subsidence and all the other residents
were happy to go along with the scheme. The case was dismissed.
In each case the request for an implied covenant to repair
does not merit one as the insurance provides remedy but in our case what should
be the case with the insurance has been affected by the actions of the landlord
to make us un-insured.
It is therefore essential that an implied covenant to 5(22)
protects our position for all the above reasons cited by the Lords above and as
is seen as authority in the once final court the House of Lords.
If this draft does not address that then the claimants are
applying now in time to take the case to the Supreme Court. They should not be
put to doing this is the light of comments to this draft. They also seek
permission to address judicial influences in this case as stated they would do
if the issues are not addressed.
In the Adami case J Vinelott said at the end of judgment
“More generally, I can see no ground for importing any obligation on the part
of the lessor to carry out works of repair to the block from causes which are
not covered by an insurance policy effected pursuant to the terms of the lease
(modified in practice by the substitution of a block policy and its extension
to cover damage by subsidence), in particular damage which might result from
the gradual deterioration of the structure during the term of the lease. In
Duke of Westminster v Guild [1985] QB 688, Slade LJ, at p697, approved a
passage in Woodfall, Landlord and Tenant 28th ed (1978) vol I, para 1/1465 p618
in these terms:
In general, there is no implied covenant by the lessor of an
unfurnished house or flat, or of land, that it is or shall be reasonably fit
for habitation, occupation or cultivation, or for any other purpose for which
it is let. No covenant is implied that the lessor will do any repairs whatever
…”
In our case it is an absolute requirement to keep the
demised premises and the development in repair and most especially I might add
fit for human habitation, with fire certificates (which there were none) and
with business efficacy with regard to the structure according to the terms of
the insurance, forming an integral and expressed covenant of the landlord to
keep the premises insured and in repair at all times, in accordance with the
lease.
40.
Similarly
in Adami the tenants of various
blocks of flats were required under their leases to repair the demised premises
and to maintain an insurance policy against risks to be specified by the
landlord. The landlord maintained
a block policy for the development which included the risk of subsidence. When this occurred the issue arose as
to whether the landlord was required to do more than to lay out the insurance
monies to repair the damage caused by the insured risk.
41.
The
court rejected the submission that an obligation by the landlord to repair the
structure of the building should be implied into the lease. Vinelott J said that:
“In my judgment,
the contention that it was an implied term of the 1990 lease that the lessor
would be liable to make good any damage to the structure of the block whatever
might be the cause of the damage, is simply untenable. The lease contains an
elaborate scheme under which exceptional damage to the structure is to be
covered by insurance effected in the joint names of the lessor and the lessee
and maintained at the expense of the lessee; similar obligations are to be
imposed upon the lessee of every other maisonette or flat in the block. The
lessor is given power to enlarge the scope of the policy beyond fire and damage
by aircraft, so as to enable the insurance to be extended at the expense of the
lessee if it becomes apparent that damage to the structure may result from
other causes. After 1971 damage by subsidence following a succession of dry
summers became a common experience and it was, no doubt, for that reason that
the lessor (who by this time had effected insurance in its own name under a
block insurance policy with the consent or acquiescence of the lessees)
extended the insurance to cover subsidence. In so far as damage to the structure
results from an insured risk, there is simply no ground for importing any
implied obligation to do more than lay out any insurance moneys coming into the
hands of the lessor, in making good that damage (any deficiency in the
insurance moneys being made good by the lessees).
More generally, I
can see no ground for importing any obligation on the part of the lessor to
carry out works of repair to the block from causes which are not covered by an
insurance policy effected pursuant to the terms of the lease (modified in practice by
the substitution of a block policy and its extension to cover damage by
subsidence), in particular damage which might result from the gradual
deterioration of the structure during the term of the lease. In Duke of
Westminster v Guild [1985] QB 688, Slade LJ, at p697, approved a passage in Woodfall,
Landlord and Tenant 28th ed (1978) vol I, para 1/1465 p618 in these terms:
In
general, there is no implied covenant by the lessor of an unfurnished house or flat, or of land, that it is
or shall be reasonably fit for habitation, occupation or cultivation, or for
any other purpose for which it is let. No covenant is implied that the lessor
will do any repairs whatever …
In the context of
a lease for a term of some 260 years at a nominal rent granted by a corporate
lessor originally incorporated as a management company, in which shares are
held by the lessees of all the maisonettes and flats comprised in the
development and which contains detailed provisions governing the repair of the
individual maisonettes and flats, the levying of a service charge to meet the
costs of the maintenance of the community land and for insurance to be effected
and maintained at the expense of the lessees to cover damage from any
catastrophe affecting a block as a whole so far as reasonably foreseeable, it
is, in my judgment, impossible to presume an intention that the cost of
maintaining the structure of each block should fall on the lessor. No such
implication can be founded on the obligations on the part of the lessee under
clause 9(b)(iv) to permit the lessor to view the property and to effect work
necessary for upholding the building (see Sleafer v Lambeth Borough
Council [1960] 1 QB 43) and the same principle must apply also to the covenant by
the lessee in clause 9(b)(ix) to co-operate with the lessor and other lessees
in carrying out repairs to the block.
Mr Marshall relied on the decision of the Court of Appeal in Barrett v
Lounova (1982) Ltd [1990] 1 QB 348.
…
The decision of the Court of Appeal in Barrett v Lounova is, of course,
binding on this court. However, in my judgment, it must be taken as decided upon the special facts
of that case and no principle can be discerned which requires the implication
of an obligation on the part of the lessor to keep the structure of the block
in good repair. I would dismiss the appeal.”
42.
I
take the same view in relation to the leases of 104 and 106. Although there is no express repairing
covenant imposed on the landlord, the repair of the structure of the building
is catered for through the provisions of clause 7(2). In the face of these provisions there is no reason based on
necessity or business efficacy to alter the balance of the scheme by imposing
an implied covenant to repair on the landlord, let alone one under which his
liability to repair is made absolute.
If one applies the modern approach to the implication of terms as a
process of construction (see AG of Belize
v Belize Telecom [2009] 1 WLR 1988) to do so would be to seek to improve
the contract from the point of view of the tenant rather than to give it the
meaning and effect which both parties must have intended given the terms and
structure of their contract. The
reasonable man looking at the matter with all the relevant background
information would not in my view assume that the only meaning which could
reasonably be given to the contract was that CHAL should be responsible for any
defects in the repair of the retained parts irrespective of any negligence on its
part.
42. The writer take the same view about an implied repairing
covenant for which none was asked for. Yet the writer does not deal with the
implied covenant request to clause 5(22) to keep the development and the demise
insured at all times.
Somewhat ironically the writer goes on to say; “Although there is no express repairing
covenant imposed on the landlord, the repair of the structure of the building
is catered for through the provisions of clause 7(2). In the face of these provisions there is no reason based on
necessity or business efficacy to alter the balance of the scheme by imposing
an implied covenant to repair on the landlord, let alone one under which his
liability to repair is made absolute.”
The writer quotes the case of Belize v Belize which is about
a companies articles of association, (so a construction case of what is meant
by the words in a particular contract), that by way of these articles of the
company let two people of little or no consequence to the company, in charge,
if others resigned, it was basically seen as absurd when an actual situation
arose so the court decided that its intervention to alter the
instrument/contract/articles was necessary as it had obviously been left out in
error by the architect of the contact who did not think of an eventuality that
actually did occur. The reasonable men argument was used to give the instrument
the correct intention as would have been be done if both parties had thought of
that situation and those special facts at the time.
The writer in our case goes on to say;
“The reasonable
man looking at the matter with all the relevant background information would
not in my view assume that the only meaning which could reasonably be given to
the contract was that CHA should be responsible for any defects in the repair
of the retained parts irrespective of any
negligence on its part.”
But that is not
what we contend we simply are all insured and the landlord is responsible to
make claims to have those parts repaired at all times, POL covers business
interuption when the damage is from outside and can be claimed for.
Now interestly,
this is the only mention throughout the case of potential negligence on the
landlords part. What does that sentence mean? What is the writer referring to?
It is our case
and has been agreed by the trial judge that the insurers said the landlord
committed an act of omission which had the direct consequence of us being
stopped from claiming on the POL and that the landlord failed to claim on
cessor or rent for times when the premises as the claimants contend were either
partially or wholly unfit as set out in the schedule of loss.
The writer suggests and has used much law above to do so
that no implied repairing covenant should be in place but that has never been
pleaded.
Is the writer going to address what has been pleaded as an
implied covenant in the clause 5(22) of the leases; that insurance monies not
received by the landlord due to an act of omission by the leaseholder, should
too be a correlative obligation and an implied covenant as was pleaded? As Lord
Cross of Chelsea said that the
court; “must be able to say that the insertion of the term is necessary to give
— as it is put — 'business efficacy' to the contract and that if its absence
had been pointed out at the time both parties — assuming them to have been
reasonable men — would have agreed without hesitation to its insertion”. And to
the modern day case of Belize v Belize which is then cited by the writer as giving
advantage to the claimant by an implied term to repair than with respect is not
what was pleaded but since the case has been cited it is important to say that
without the implied term the contract would and did become unworkable with the
landlord claiming rent at times of unfitness and by their own default making
the claimants un-insured under the POL scheme in place under two insurers and
the structure indisrepair under three insurers and contiuing to leave the
claimants in a position of indifference whilst lying to them that they were
chasing POL when they had already been told they breached the policy.
I therefore do
not think that Belize v Belize would unfairly improve the contract it would be
utterly fair and correlative in obligation not to breach the insurance.
43.
For
much the same reasons, the existence of what the parties obviously intended
should be a comprehensive scheme for the repair of both the demised and the
retained parts of the building is sufficient to exclude from their legal
relationship any liability at common law in tort which the landlord might
otherwise be subject to in relation to its retained premises.
43. We very much agree that the existence of what the
parties obviously intended should be a comprehensive scheme for the repair of
both the demised and the retained parts of the building is sufficient to
exclude from their legal relationship any liability at common law in tort which
the landlord might otherwise be subject to in relation to its retained
premises.
44.
It
follows from this that the judge was wrong in my view to have held that CHAL
even came under a duty to repair the retained parts including the stack pipes
and the pavement lights and therefore to award the tenants damages of £100 for
the breach which he found to be proved.
In these circumstances, it is unnecessary to consider the landlord’s
alternative argument in relation to the pavement lights that they were covered
by the principle of caveat lessee.
The issue of quantum does not therefore arise but I observe that
although the judge is criticised for his award of a nominal £100 for loss of profit in the three week
period in April 2005, the independent joint expert (Mr Hall) reported that
there was no evidence that, but for the delay in repairing the leak, the
tenants’ business would have earned income in the relevant period.
44. The writer says here due to the above comments in 43.
that in these circumstances, it is
unnecessary to consider the landlord’s alternative argument in relation to the
pavement lights that they were covered by the principle of caveat lessee.
That is a good
decision as we have said all along that the priciple of caveat lessee had no
application in a case where the defects were in the retained parts and covered
by the insured risks.
The writer says also that since there was no ‘duty’ the
finding of negligence and the award of £100 for three weeks, more than should
have been for the nine foot of shit down the walls, cannot now be held and the
defendants therefore succeed in their counter claim in this court of appeal to
quash the £100 compensation awarded for those three weeks.
The writer also adds in isolation that the judge found
that no bookings had taken place in that time and simply takes an imbalanced
view despite the claimants contending in their skeleton that the assessment of damages at £100 is extraordinary on the judge’s own findings
of fact (not least that at one point the “smell was really bad in 106-108”and
the recurrence of repeated ingress of water must have been “quite enough
to daunt the bravest of spirits”). In his judgment on quantum, the judge
approached the assessment at a simple matter of looking at the lost
income for bookings
during the exact three-week period when he found that
the premises could not
be used for display/hire. Such approach takes no
sensible account of the
impact on the tenants’ ability to attract customers, to
display their art or
hire the exhibition area, of the fact that the premises
recurrently had a foul
or damp smell and/or were damp as a result of ingress of
water, foul water or
sewage.
Further, on the judge’s
own findings, the tenants had had to make repeated
claims on the insurance
policy. In relation to each claim there had been a
£100 excess. That
excess was a loss which they suffered by reason of the
landlord’s default and
for which they were awarded no damages.
The writer in so far as acknowledging in common law that the
defendants have no expressed repair duty or any duty to take reasonable care or
have not caused an actionable nuisance or have not been negligent, so as to
retrieve in the court of appeal in this judgment the award of £100, then at the
very least it should be acknowledged that the excesses paid for by the claimants
of £100 per incident were not the excess of the claimants as contended as the
damage came from the retained parts so those excesses were the landlords. It
would be odd if not only the claimants suffered the damage from the retained
parts but had to pay for the suffering at £100 of each occurrence and this
should be stated as such in relation to the laws on who pays excesses.
Cesser of
rent
45.
This
point is now only relevant to the amount of arrears of rent for which the
tenants are liable. Absent any
liability on the part of CHAL for substantial damages for loss of profits,
there were outstanding arrears at the time when the landlord re-entered in
October 2008 and both leases were therefore validly forfeited on that
date. It follows that CHAL is
entitled to possession as ordered by the judge and to mesne profits in the sums
he awarded.
45. As contended no rent was owed at the time of re-entry.
If it followed that 5(22) clause was to be implied for the landlord to observe
the same and not vitiate the insurances then not only was rent not owed but
£39,000 in rent was paid and unduly enriched the landlord.
46.
The
cesser of rent clause is only triggered when the demised premises “or any part
thereof” are destroyed or damaged so as to be “unfit for occupation or
use”. Although the judge is criticised in the grounds of appeal for
concentrating on whether the demised premises as a whole were ever unfit for
occupation or use, this was because a case based on partial unfitness was never
pursued at the trial. The tenants’
case was that the demised premises had become wholly unfit for use and their
damages claim was based on that factual premise. Since both experts were agreed that this was not the case,
it was obviously open to the judge to reject the contention that clause 6(3)
had come into operation. There is
nothing in this ground of appeal.
46. The writer says “this was because a case based on partial unfitness was never pursued at the
trial.” But if the writer checks the schedule of loss partial unfitness was
pleaded as well as the premises being at times wholly unfit. And if it follows
that the scheme of insurance is to be upheld then the partial unfitness is also
covered by the terms of the insurance as pleaded.
The writer says
“Since both experts were agreed that this was not the case, it was obviously
open to the judge to reject the contention that clause 6(3) had come into
operation.” It is not clear as to which two experts the writer is referring to
and the fact that their was a third and forth expert. This needs to be made
clear as we contend that our own expert surveyor said the place was unfit. The
expert froensic accountant assessed the damages as such and the joint surveyor
said that the places were unfit for ocupation. So this is not at all acurate.
Costs
47.
The
judge ordered the appellants to pay the costs of the action on an indemnity
basis including the reserved costs of the hearing before Christopher Clarke J.
and various pre-trial interlocutory hearings before Judge Cowell himself. Two points are taken in the amended
grounds of appeal. It is said that
the case did not justify the exercise of the exceptional power to award
indemnity costs particularly in relation to the period before CHAL made various
offers to settle. The tenants also
say that they should not be required to pay the reserved costs of all the
interlocutory applications given that in a number of them they were successful.
47. The writer says “It is said that the case did not
justify the exercise of the exceptional power to award indemnity costs
particularly in relation to the period before CHA made various offers to
settle.” Firstly as Ms Flores said in court improper inducement to fix a £5,000
repair or have your rent doubled is not an offer to settle. The writer continues, “The tenants also
say that they should not be required to pay the reserved costs of all the
interlocutory applications given that in a number of them they were successful.”
The writer says the indemnity costs were from the start of
the £25,000 offer made the day before proceedings commenced. That we contend
was an insulting offer and was based solely on the insurers not wanting to pay
£100,000 in lawyers fees at the trial and takes no consideration of the fact
that the claimants had by then in the two years leading up to trail had to pay
out £50,000 in legal costs on top of the already outstanding claim. Matt Kelly
QC who was at the mediation said it was a cheap shot of saving the costs of the
trial and agreed to settle at that point at £450,000 for which was rejected by
the defendants and their insured who were paying for the proceedings.
Incidentally this cheap shot cost the claimants £8,000 in counsel and
solicitors fees and further added to their costs how then does £25,000 cover
this. It is not by a long shot reasonable and should not be seen as such to
give additional indemnity costs from the point of this offer, which for the
record is only not stated as starting from this point. Where this evidence came
from is unknown and should be made clear.
The claim is for in the region of £600,000 and is backed by
expert evidence and qualified by years of disrepair when the claimants could
command as much as £800 for an evenings hire and did and also could hire the
place for £5,000 a month at a discount rate and did too as Ms Flores said in
the court of appeal. To quote big figures as if it were out of the ordinary and
to use that as an excuse for indemnity costs is to patronise the ability and
scope of the claimants business. Further the claim for £1.9 million is for
exceptional damages in relation to the work of the social enterprise New NAYPIC
Youth Parliament and their loss of opportunity especially at the present time,
which can only serve to raise the claim if this continues.
48.
In
ordering the appellants to pay the costs on an indemnity basis the judge took
into account a number of factors.
The claim had at one stage been put as high as £2m but in the end
resulted in an award of £100. The
precise nature of the claim was never made clear in the pleadings and the
defendants incurred expense in, as the judge put it, fighting in the dark. As to the starting point for indemnity
costs, the judge had to consider whether they should commence from the date of
a Part 36 offer on 16th July 2009 when CHAL offered to pay to the
appellants £25,000 and their costs or from the start of the proceedings. In relation to that, the judge took
into account the fact that in 2007 the landlord had offered to continue the
lease of 104 at the same rent for another five years. Although not a Part 36 offer, this was influential in
persuading the judge to order indemnity costs from the start.
48. The writer says, “The reality of the claim in this case is that it was always exaggerated.”
Which suggests the writer agrees with the defendants when they suggest this but
it has to be taken in the context that the word exaggerated is the only term of
the insurance that can void it on our part. This word is used deliberately to
implicate us as having done something wrong in terms of the claim. It is false
and unfounded. The writer needs to qualify not just by using the figure of 2
million to come to an exaggerated conclusion but favts too as the claimants
have only ever been able to claim for what they have lost which is in that
region when looking at the special facts of the social enterprise. Ms Flores
whilt working for NAYPIC raised half a million pounds from the age of 17 to 21
years old and that this helped develop a national structure for NAYPIC, she a
professional fundraiser. This evidence proves that she could and was, doing
more than that long after her employment to ensure the organisation became
independent and to create an independent youthg economy. Essestially those are
special facts and could be seen as remote if judged to be too remote however Ms
Flores contends that the breaches of the landlord effectively ruined her
chances of doing business in this venture for which the shops had been set up
to achieve.
49.
The
appellants are right, of course, to submit that the judge’s power under CPR
44.4(3) to award costs on the indemnity basis is exceptional in the sense that
the circumstances relied on to justify the order must take the case out of the
norm. But it is not necessary to
show some kind of misconduct on the part of the paying party and unreasonable
conduct on the part of the tenants, coupled with their refusal of reasonable
offers to settle, can in my view engage the court’s power and make the exercise
of it proportionate. The reality
of the claim in this case is that it was always exaggerated. Although the incidents of water and
sewage leaking into the tenants’ premises were undoubtedly distressing and
inconvenient, they never justified a claim for damages in excess of £2m and
were, for the reasons I have given, in fact legally unfounded. Mere failure in the action is not
enough to justify an award of costs on the indemnity basis but here the
inflated nature of the damages claim was matched by a failure to limit the
basis of the claim both factually and legally so that the judge was required,
as he put it, to conduct a kind of inquiry instead of trying a case based on
defined issues. Although some
allowance has to be made for the fact that the tenants acted in person, that
does not justify a complete disregard of procedural rules or the making of unfounded
and exaggerated claims.
49. The writer says that the claim was for the reasons of
lack duty or want reasonable care of repairing obligations legally unfounded,
that as may well be in the legal case for implied repairing obligations but it
is not the case for the landlord voiding the insurance which was the case
pleaded. It therefore stands that applying indemnity cost for a valid case
cannot apply. It says in law in CPR indemnity costs 44.4.3 indemnity costs are
rare and not to be used as a tool with regards to mediation. This landlord has
never once at any juncture offer to seriously mediate and was asked many, many
times to do so starting with Alan Harris and ending with Veale Wansborough and
Matt Kelly QC. They have simply used legal might to try to crush us out of the
claim hence why it is so high now and rising every day it goes on. We would
never even at this juncture turn down a serious offer of mediation reflecting
our real costs and taking even a fraction of potential losses to date. No offer
has been made to do this only tactics to save costs have been used. You have to
understand from the beginning none of them wanted to pay because of their
dispute with each other. We will not spend the rest of our lives paying for
their act of omission and if we are put to doing so that is simply injustice
and there really is no law that does not address at the very least the real
issue.
The writer goes on to enhance the line that the claimants
did not make the case clear. This is legal poppycock and a poor excuse for
indemnity costs.
50.
I
therefore consider that it was within the legitimate ambit of the judge’s
discretion for him to make an award of indemnity costs in this case and to do
so from the start of the proceedings.
The only remaining question is whether the order should have included
the reserved costs.
51.
It
is, of course, true that the appellants were successful before both Wilkie J.
and Christopher Clarke J. in being restored to the premises and resisted a
subsequent attempt to vary those orders.
But the judges who decided those applications reserved the costs to the
trial so that the ultimate burden of the costs would be decided having regard
to the outcome in the action. Had
it been appropriate for the tenants to receive the costs of the applications
regardless of that, an order would have been made in their favour at the time. As things have turned out, the landlord’s re-entry into the
premises was lawful and the appellants had no right to remain in possession
thereafter. In these circumstances
it was within the trial judge’s discretion to direct that the costs of those
applications should follow the event.
Conclusion
52.
For
these reasons, I would dismiss the appeal and allow the Respondent’s cross
appeal against paragraph 2 of the judge’s order.
Lady Justice Black:
53.
I agree.
Lord Justice Mummery :
54.
I also agree.
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