The Supreme Court of the United Kingdom Ms Jo Gavin
Parliament Square 32 Tonbridge House
London Tonbridge Street
SW1 3BD London
24th May 2016
Dear Lord Kerr, Lord Carnwath and Lord Toulson,
Thank you for your reply dated 5th February 2014 regarding my appeal lodged with the Supreme Court on 21st June 2013, from a decision made at the Court of Appeal case number B5/2010/2396 in the Case of:
Flores (nee: Gavin) and another
Community Housing Association (now: One Housing Group)
As you will be aware I was at the European Court of Human Rights up until April 2014 and then due to having to pay for legal advice myself since, it has taken some time to legally respond to your refusal to give me permission to appeal to the Supreme Court, where you submit there is no arguable point of law.
I therefore apologies for my late reply but feel I must raise a nuance that I have been advised of now by several lawyers.
The Court of Appeal said there was no liability for CHA (nor myself I might add) to repair the structure. Instead they said that both parties were insured and that the structure was catered for in the lease by building insurance.
Once I could get a lawyer I asked him to write to the landlord to recover my losses, based on the Court of Appeal judgement.
This is what he wrote;
Mick Sweeney CEO
100 Chalk Farm Road,
17th March 2016
Dear Mr. Sweeney,
RE: MS MARY JOSOFAR VALDIVIESO FORTUNO FLORES
My name is REDACTED, a barrister authorized by the Bar Standards Board to provide representation on a Direct Access Basis.
I have been instructed to represent Ms Mary Josofar, Valdivieso Fortuno Flores, abbreviated in the Court of Appeal in May 2013 to Ms Jo Flores, who was originally Ms Mary Moss, Chairperson of New NAYPIC / Youth Parliament and then was known to you from 2000 as the commercial tenant of both premises 104 & 106-108 Cromer Street WC1H 8BZ as Ms Jo Gavin in the case of; Gavin and Cracy v Community Housing Association (2008-2013). I write this letter on my client’s behalf in relation to outstanding matters concerning this case.
Ms Jo Flores (and later her then business partner from 2004-10) became a tenant of two commercial properties 104 & 106-108 Cromer Street from 2000 to 2008 when the landlord she says trespassed/forfeited both properties for a disputed non-payment of rent, after the tenants had suffered a series of disrepair at both premises for four years, including no ventilation breaching part F building regulations (not fit for human habitation) and several leaks including waste pipes bursting into the premises for which the tenants believed they had an unreasonably long delay and still outstanding claim on the insurance, so that they could have use of both premises, as established in court in July 2010 at a ten days trail and then in a permission to Appeal hearing in Dec 2012 and finally culminating with the outcome in May 2013 that the structure was insured.
After the Court of Appeal hearing in May 2013 having represented herself she went on to the Supreme Court and then she proceeded to the European Court.
Ms Jo Flores was left without a business at a crucial time in her children’s rights and art career and more importantly without any means to pay for a lawyer. She has therefore been slow in obtaining advice for this reason but now has done so.
My client wrote to you in May and in June 2014 but you failed to respond. I hope that you can now answer her questions from the legal advice taken, as the claim finishes three years after any decision is made, so that deadline is the 25th May 2016.
In the Court of Appeal Judgment on 25th May 2013 it states in paragraph 42 in absolute terms
"The repair of the structure of the building is catered for through the provisions of clause 7(2) [obligation to insure]"
"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 ..."
At Paragraph  to "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"
At Paragraph , "disrepair of the structure ... 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"
The Court's basic point is that in appropriate circumstances the landlord has an obligation to pursue the insurance route. Looking at clause 7(2) of the lease, if the premises are damaged by an insured risk the landlord must (to paraphrase) with reasonable speed use all relevant insurance monies received from the insurers to repair/reinstate the premises. This in turn implies that the landlord has an obligation to use reasonable effort to pursue an insurance claim.
So it seems Ms Flores needs to assert or recover any of the contractual benefits of the policy, which she might be entitled to limited to damage to property.
The said insurers, UKU underwritten by Lloyds Ireland & joint excess liability insurers Royal & Sun Alliance did not fix the structure in both premises104, namely the floor from Jan 2008 to Sept 2010 & 106-108, namely the lack of ventilation breaching part F building regulations from April 2004-Sept 2010.
It was stated in the Court of Appeal in May 2013, that the structure was covered by insurance despite the landlords failed attempt to say at one point that it was the responsibility of the tenant.
Ms Flores took advice in 2014 from a partner at a law firm specializing in insurance and they advised that since the Court of Appeal judgment was only decided within the last few years, it was only at that stage she would have known there was a lawful claim.
Ms Flores is acting now from her first knowledge of the lawful claim subject to third party insurance claims law, noted interest and that the insurance was clearly taken out by you the landlord for the benefit of the commercial tenants as established in the Court of Appeal.
The lawful claim is within 3 years of the tenants knowledge, although as Ms Flores has stated throughout, and you may agree, the claim has already been made, by you the landlord through the property claim form in 2005 and so, as such still remains outstanding.
It is submitted that you therefore have a duty to chase up the claim, even if you have to use your current insurers to do so, in line with that duty.
In a report from 2009 by expert Mr Mike Parrett in conducting a 4-stage survey of 106-108 premises with regards to the ventilation, he states
"Additional static ventilation to the main cellar room to business unit 2 should be provided to comply with the requirements of the approved document Part F of the current Building regulations."
Since the repair to the structural ventilation was made in 2012 this indicates there was throughout ongoing structural material damage for which the material claims, are still outstanding.
I am re-visiting if there is anything you can do for Ms Flores with the insurers to speed up the outstanding claims for material damage that you made in the property claim forms in 2005.
In light that your own liability not to repair was also established but in view of your duty as established in the Court of Appeal in May 2013 to chase up any outstanding insurance claims, namely the absent ventilation at 106-108 & the floor at 104 and any reasonable offer of settlement due to the insurance delays and consequential losses, I request that you now perform your duty and let my client know the outcome.
Given the ongoing delay in relation to this matter and the fact my client has written to you previously in relation to the same issues, I request that you respond within the next 14 days so that a resolution can be achieved without the expense of further proceedings.
Since then the Housing Association wrote back 15/04/16 through their in house commercial property solicitor stating they would reply in 14 days but to date they have not.
I respectfully request an order from the Supreme Court following on from the legalities of the judgement at the Court of Appeal, for the Housing Association to recover my losses with me. I have drafted some particulars of claim that I think they might use for a joint claim against UK General Insurers of Old Mill Business Park, Gibraltar Island Road, Leeds LS10 1RJ formerly UK Underwriters of Leeds.
PARTICULARS OF CLAIM AGAINST OUR BUILDING INSURERS
i. The Defendant building insurers knew from Sept 2005 that the third party commercial leaseholder to their insured was suffering material damage to two of her commercial premises. Both of her premises were insured for material damage with her landlords building insurance policy taken out for her benefit and for which she had paid a premium, making her a ‘noted interest’ on the building insurance policy, as seen in her two leases. The defendant building insurers breached their expressed ‘duty’ or ‘promise’ to make her, who was the beneficiary of the policy, ‘held harmless’ by repair or reinstatement of her premises.
ii. Further the defendant building insurers by refusing to settle the valid claim therefore failed to enable the insured landlord policyholder, to comply with the legalities of the claimants leases, in Para 7 thereof: - “…in the event of damage to the demised premises by any of the insured risks (the policy holder) is obliged with all convenient speed to lay out and apply in rebuilding repairing or otherwise reinstating the demised premises all monies received by virtue of such insurance.” by a protracted avoidance of the disrepair claims for material damage, leaving the disrepair to continue.
iii. Under the (third party to the building insurance) commercial leases,the landlord was obliged to effect claims on their building insurance policy promptly wherever they had cover. They instigated this in Sept 2005 in respect of a number of disrepairs dated from 2003/4/5 that the third party claimants had either had to fix themselves by paying for their own emergency contractors and/or in some cases the landlord had fixed repairs themselves too. The landlord’s building insurers that the landlord had claimed for in the 2005 property claim form reimbursed an amount of just over £3,000 to the third party claimants. Since the structure was insured by the landlord there was some ‘property owner liability’ claims by the third party which were left outstanding by the insurer, as well as two major structural repairs, that neither the landlord nor the third party could afford to pay for. This amounted to professional negligence as the repairs in both commercial premises rendered both businesses unable to trade from and with commercial rents and running costs still having to be paid, the delays amounted to undue stress and could not been seen in insurance law as a ‘duty of good faith’ a ‘promise’ or any other kind of ‘duty’ to hold the insured or their third party ‘harmless’ nor did the insurers actions prevent further loss occurring in a commercial reality for a medium income small business.
iv. The insurers then acted in ‘bad faith’ instead ensuing a protracted avoidance of the valid claims and this prevented further action being taken promptly in respect of risks covered for in the building insurance policy. The commercial consequences of the insurers actions could only lead to the third party being continuously penalised financially and this was not only foreseeable but as it was no matter how many times there was an opportunity to mitigate the claimants continued losses in terms of rising interest, reimbursement, reinstatement or repair the insurers failed to do so until they arbitrarily set the landlord up against the tenant to fight out an unnecessary liability claim where the Court of Appeal in 2013 would eventually state both parties were insured so neither was liable for repair, in a waste of time, effort and extraordinary costs to themselves and for what?
v. The Defendants building insurers continued to act in ‘bad faith’ by paying for the legal costs of one side of a situation that they caused and/or permitted to continue a dispute between the landlord and tenant that would lead to years of court proceedings and they failed to take any sensible and necessary steps to stop, prevent or remedy the situation. This we were made aware was a commercial decision based on larger liabilities than the third party claimants alone, potentially leading to floodgate litigation cases regarding the law of a precedent. They acted in ‘bad faith’ putting their commercial interests first in a conflict of interest.
vi. The Defendant building insurers were made aware from the start of the claim in 2005 of the good work of the third party building insurance claimant and therefore the morally principled urgency to settle the claims expediently so as not to have a detrimental effect on such important work, as well as the nature of the claimants entrepreneurial youth parliament aims, in this commercial social enterprise associated with the prevention of child abuse which later on during protracted court proceedings became subject to a police criminal investigation which became widely publically known as Operation Fernbridge, formerly Operation Fairbank to which the claimant had been central to and that she had set up both premises and further, the types of corporate clients she was attracting and the value of such business. Further, they were made aware of all other continuing problems occurring as soon as they arose. This however did not prevent delays in settlement and presents a similar case that had the correct credentials to overturn the much renowned case of Sprung V Royal Insurances where there is no damages for delays in paying of a valid claim in England as opposed to Germany, Italy, United States and Canada, China and even Scotland and is said to be a much needed law change in England. Some delays as in this case have dyer consequences.
vii. The defendant building insurers were negligent in that they delayed in instigating repairs and/or replacements causing ongoing and increaseddamage and/or loss of business and of business opportunity.
viii. They were further negligent in failing to replace the damaged floor in one of the third party commercial premises after a flood from the insured landlords property, when it was foreseeable that if they did not this would cause interruption to business.
ix. They were further negligent in failing to repair the structure in one of the third party commercial premises, when it was foreseeable that if they did not this would make the business illegal to trade from as it had no air.
By reason of all the aforesaid the Claimants have suffered loss and damage, loss of reputation and goodwill, distress, depression, stress andinconvenience AND the Claimant claims: -
1. Damages (Schedule of Loss to follow)
2. Exemplary damages
3. Further or alternatively, re-payment of rent paid at £47,994 plus interest during the periods the Claimants unable in part or in whole to use the premises
4. Interest pursuant to Section 35A of the Supreme Court Act 1981
6. Any other remedy the Court deems fit
May I remind the Courts that UK Underwriting LTD made a judgement call as far back as 2005 not to except liability for the structure in a preliminary report where they judged that the probable outcome would be fees but the worst case would be £30,000 and ask you to consider the order now for them to pay.
I have served this letter to the solicitors for the other side today.
Although I am aware that the building insurers UKU are covering the housing associations costs it is not outside their scope to disassociate using there current Zurich Insurers to recover from UKU or perhaps UKU can now settle the matter that has caused the divide between us.
If an order is made, then at the very least I can stop being ignored so as having to come back to bother the courts in the very same matter.
With Kind Regards
Ms Jo Flores (Nee: Gavin)