Below is my written response to the ‘Court of Appeal’
judgment and it is pretty long winded and detailed. It has a numbered reference to each point of relevant argument. It is placed in the Supreme Court Application as document number
1. I have sent this!!! The judgment and my points are together for ease of reference as seen below.
These are the merits of my case. I believe I have clearly
identified in the application how the convention has been breached.
If I have missed out any conventions that have been breached
this is because I am keeping it to the point and also because I am not legally
trained to know the conventions that may also apply to the application and have
no legal representation.
I have approached organizations but they said they cannot
take on the work load. I understand this very well.
Having however changed the law at 19 years old, consulted on
the Children Act 1989 and the Residential Care Bill as well as was heavily
involved with the consultation and the ratification of the UN Convention of the
Rights of the Child when I was a development officer for the National
Association of Young People In Care, I know only too well to keep things short
and to the point.
Those are ‘Right to Property’ & ‘Right to a Fair Trial’
So with this evidence of argument and with the application
duly signed and all judgments provided the only trick I can now see happening
is that the ECHR’s may and they can do this play the ‘application is manifestly
unfounded’ card.
I know that the only way to avoid it according to LIBERTY’s
advice given is:
Merits of the case: the
Court regularly finds applications are ‘manifestly ill-founded’, which means
they will not pursue the case and will often not even require the respondent
Government to reply to your application.
There is no hard-and-fast
rule to ensure that your application is not manifestly ill-founded. Here are
some ways to avoid it:
you should ensure that the
application is very clearly set out; you should very clearly identify how your
Convention rights have been breached; simply listing off things that were
unfair or unreasonable would not be sufficient, those things must be clearly
linked with the Convention; it is often better to write a short and succinct
application than a long rambling one; you should demonstrate very clearly why
the domestic courts in the UK have got something wrong – the Court will often
look to the judgments of the domestic courts to understand the case, so you
need to ensure that you reply very clearly to the key points made in those
judgments.
You normally need to
demonstrate that you have suffered ‘significant disadvantage’ from the breach
of your rights.
You should be clear,
correct and honest throughout your application. If your case is to be
successful, the other side will be given an opportunity to respond. If it is
shown that your application has deliberately misled the court, it could be
struck out.
The response to the judgment
was sent to the ECHR’s in Nov 2013 and as you can see I have replied to the key points made
in that judgment. I am not going to unnecessarily duplicate as I said in my letter of the 17th Feb.. what is wrong with these administrations?
Neutral
Citation Number:
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
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Between :
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GAVIN & ANOR
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Claimants/Appellants
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and -
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Community housing association limited
(now one housing group limited)
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Defendant
Respondent
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- - - - - - - - - - - - - - - - - -
- - -
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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
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- - - - - - - - - - - - - - - - - -
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 v. Hartopp & Co. [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.
.JPG)
