Adverse Possession of a Highway II

Published
by
Francis Davey
on 12/03/2010
in Adverse possession and Uncategorized
. 0 Comments

Last year we reported the decision R (Smith) v Land Registry [2009] EWHC 328 (Admin) in which the High Court held (amongst other things) that it was impossible to acquire land by adverse possession if that land was subject to a public highway. At the time I expressed my concern about the soundness of that conclusion and so it is rather pleasing to find that on appeal in R (Smith) v Land Registry [2010] EWCA Civ 200, the Court Appeal agree with me.

To recap: the claimant lives in a caravan on land to the North of road which is a part of the public highway, even though it is not itself metaled. He claims that, by adverse possession, he is entitled to have his title to the land registered.

My view was that this was bound to fail because: (i) a highway cannot be extinguished by adverse possession (the “once a highway, always a highway” point); and (ii) section 263 of the Highways Act 1980 vests the surface of any highway maintainable at public expense (as this one was) in the local authority. The same analysis was applied by Elias LJ and Mummery LJ in the Court of Appeal. Orthodoxy, in my view anyway, is restored.

I had also doubted whether a statement by Mummery LJ in the earlier case of London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 that property could not be acquired by adverse possession over land subject to a public right of way could be correct. Mummery LJ helpfully clear this up:

In the court below, counsel for the Land Registry cited a passage from London Borough of Bromley v. Morritt [1999] EWCA Civ 1631 in which, without any display of law, I said-

“As a matter of law, an adverse possession or squatter’s title cannot be acquired to land over which a public right of way exists.”

In that case the court had not had the benefit of clear legal submissions on the point — in particular the appellant was a litigant in person —. I think that “without any display of law” is a very neat and gracious way of the judge to put it.

My last post on this subject generated a lot of feedback – ranging from those who equated adverse possession with theft, to those who felt the court ought to have made the doctrine more expansive. I should make it clear that I am not unsympathetic to Mr Smith’s plight. Successive governments have passed laws making it increasingly difficult for people, especially Roma, to exist in England and Wales lawfully, without providing them with any alternatives. That, on any analysis, seems irrational (since the alternative may be to house them using public funds which as readers know is not in generous supply) and unfair.

What seems to be the problem here is s.263 of the Housing Act 1980. Earlier acts, up to section 29 of the Local Government Act 1929, vested not the whole highway but the “road” in the local authority. While “road” did include the footway beside the road, it did not include roadside wastes such as Mr Smith inhabits (Curtis v Kesteven County Council (1890) 45 Ch D 504) and it might be useful — for legal certainty if nothing else — if that were still the situation. For some reason the drafters of the 1980 Act decided to extend the vesting to the whole of the highway beyond merely the road.

The court did not consider the “illegality” argument which had been put forward by the Council at first instance, namely that because Mr Smith’s occupation of his property was illegal, he could not thereby gain adverse possession of it.

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Underhand but not abusive

Published
by
NL
on 12/03/2010
in Disrepair, FLW case note, Housing law - All and Possession
. 0 Comments

Andrew Henley v Shelly Bloom [2010] EWCA Civ 202

This was a second appeal to the Court of Appeal of a first instance decision that Mr Henley’s claim for disrepair against his former landlord, Ms Bloom was an abuse of process, the first appeal to a Circuit judge having been dismissed.

The brief facts: Mr H was the tenant of a basement flat since about 1986. Ms B was the landlord from about 2001, when she acquired the freehold of the property, later just retaining a lease of the basement flat.

In October 2002, Brighton Council served notices stating that it was minded to serve formal notice requiring repairs, including defective pipes, brickwork and plaster, windows and doors on Mrs B. In November 2002 formal notice was served. In February 2003 Mrs B obtained a builders survey which highlighted penetrative damp and defective plaster work. No works were done. In September 2006, Mrs B obtained another builder’s survey, showing similar problems.

Meanwhile, in August 2006, Mrs B had begun possession proceedings against Mr H on the grounds that the tenancy was an AST which had been duly terminated.

Mr H defended on the basis that he was a regulated tenant under the Rent Act 1977 and there were no grounds for possession under that Act. Alternatively, it was a shorthold tenancy, no notice had been served under s.52 Housing Act 1980, and it was not just and equitable to dispense with notice.

The claim was settled in January 2007 on terms that Mr H would vacate by 1 June 2007 and Mrs B would pay him £16,000 and £4,000 costs. In the recital to the consent order it stated that this was full and final settlement of any claim Mr H might have arising out of improvements he had carried out at the flat, and that Mr H was to leave the flat in a good and tenentable condition when he vacated.

Mr H left on 1 May 2007, but before he did, he obtained an expert report from an environmental health officer on the condition of the property, showing extensive disrepair.

Mrs B refurbished the flat in July 2007, receiving a report from the builders on damp penetration and other issues.

Soon afterwards, Mr H raised his disrepair claim with Mrs B. There was some skirmishing on liability, causation and the extent to which Mr H had contributed to the defects. The claim was issued in November 2008.

Mrs B defended on the basis that the claim was an abuse of process and that a fair trial was impossible. Mrs B applied for a strike out on that basis. She also counterclaimed for untenant-like behaviour and breach of the agreement to deliver up in tenantable condition.

The first instance DJ granted the strike out. He held:

that there was no good reason for Mr Henley not having raised the disrepair claim during the course of the possession claim and that he “was not putting his cards on the table” during the negotiations which settled that claim. He said that the disrepair claim “ought to have been brought in the earlier proceedings”, and was “eminently capable of being settled in those proceedings”. Accordingly, he concluded, the claim was an abuse of process. He also concluded that it would be impossible to have a fair trial as Mrs Bloom was “now in a position in which she cannot instruct an expert to inspect the alleged defects in the flat.

Mr H appealed to the Circuit Judge. The CJ dismissed the appeal, for rather narrower reasons.

He relied on the fact that “the state of the property was raised in the possession proceedings and in the negotiations that led to the consent order”, and also on the fact that “the tenant agreed that he would deliver up the property in good condition”. Accordingly, as the condition of the flat was raised both in the argument contained in the pleadings and in the agreed terms contained in the consent order, he concluded that it was an abuse of process to raise a subsequent claim for damages for disrepair of the flat. As to the fair trial issue, Judge Simpkiss said that Mrs Bloom “would be fighting the case with one hand behind her back” and that the unfairness “had been caused entirely” by Mr Henley.

On a second appeal, the case came to the Court of Appeal.

After reviewing the precedent cases (Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, Stuart v Goldberg Linde (a firm) [2008] 1 WLR 823 ) and noting that it would be “wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive” (Lord Bingham in Johnson), and the Art 6 entitlement to access to justice for an arguable case, the Court of Appeal found that Mr H’s disrepair claim was not an abuse of process.

Mr H could indeed have raised the claim in the possession proceedings (held against his own argument), but the issue was whether he should have. On that:

i) the possession proceedings did not involve the question of whether the flat was out of repair. The provisions in the consent order related solely to Mr H’s improvements to the flat and/or his obligation on the condition of the flat at the end of the tenancy. it did not touch on Mrs B’s obligations.

ii) If the possession claim had gone to trial, whether Mrs B had won or lost, there would be no question that a subsequent disrepair claim by Mr H would not have been an abuse of process. It was therefore only the ‘integrity of the consent order’ that was at issue. But that order was clear on its terms and it was, of course, open to Mrs B to introduce terms on disrepair at that time. Given the factual history it could not be said that she was unaware of the possibility of such a claim and it was as much up to her to raise it in the possession proceedings as Mr H.

The bringing of the claim was not an abuse of process. If at trial the court was unhappy about the manner in which the claim had been brought, it was open to deal with that in costs.

On the fair trial issue, it was clearly possible for there to be a fair trial. While Mrs B could no longer obtain an expert report on the condition of the property at the relevant time, she had an abundance of material relating to the condition of the property between 2001 when she purchased it to July 2007 when the builders conducting the refurbishment reported to her.

It is not unusual for one party in litigation to be better informed or better advised than the other, for one party to have first hand evidence of important events which is not available to the other, or for one party to have stronger expert evidence than the other. Such inequalities normally cannot possibly justify a conclusion that the trial cannot be fair, even where the advantaged party can be said to be in some way to be responsible for the inequality. Of course, if the inequality is very substantial and very prejudicial, and especially if it is attributable to the actual wrongdoing of the advantaged party, the court might conclude that a fair trial cannot be achieved. But this is not such a case.

In addition, Mrs B could cross examine Mr H’s expert.

Mrs B failed by a significant margin to establish a fair trial was not possible.

Appeal allowed on both points. Mr H may have been underhand in keeping the disrepair claim up his sleeve, but it was not abuse to do so.

Comment
Thank heavens for that. The idea that all possible litigable issues arising out of a tenancy should be stuffed into a possession proceeding or risk being struck out as an abuse of process is bonkers. While a disrepair counterclaim may well be both relevant and necessarily raised in a possession claim based on rent arrears, in a claim such as this, based on notice and terms of termination of the tenancy alone, it is hard to see how a disrepair claim could be considered relevant, let alone necessarily have to have been included. And it may well be that the time scale of the possession proceedings would prejudice the disrepair claim, where time for expert evidence and relevant disclosure is important.

Showing abuse of process must surely be a high hurdle to surmount. The first instance and first appeal decisions in this case appear to have been extremely generous to the landlord, to put it mildly, largely on the basis that Mr H hadn’t behaved particularly sportingly.

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Admit nothing. Deny everything

Published
by
J
on 11/03/2010
in FLW case note, Housing law - All and Mortgage possession
. 1 Comment

Ashcroft v Bradford & Bingley Plc [2010] EWCA Civ 223

Mr Ashcroft purchased a property with the aid of a mortgage from Bradford & Bingley in 1990. He failed to make a single payment and an SPO was obtained in April 1991. He breached the terms of the suspension and the property was subsequently sold by the building society in 1992. The proceeds of sale left a shortfall of c.£30,000.

In 1995 (i.e. 3 years later), the society wrote to Mr Ashcroft to ask how he proposed to pay the shortfall. Mr Ashcroft responded with “indignation at the time it had taken the building society to make the demand” but – in Oct 2000 -  and at the suggestion of the society, agreed to make payments of £10 pcm. These stopped in 2004.

In 2008, the society issued proceedings. Mr Ashcroft contended that they were statute barred. He argued that, by s.20, Limitation Act 1980, the society had 12 years to recover the mortgage loan. On any view, the claim was issued more than 12 years after the right to recover the monies arose. However (argued the society), by s.29(5), time starts to run again from the date when the debtor acknowledges the claim.

The Recorder held that the claim was not statute barred, but granted permission to appeal. The appeal was dismissed. The problem for Mr Ashcroft was that he had made the £10 payments, the effect of which was to bring him within the scope of s.29(5), 1980 Act, and start time running all over again.

I’m not sure if the suggestion by the society that Mr Ashcroft pay £10 pcm was a stroke of genius or not. On the one hand, by acknowledging the debt, it got them out of a potentially tricky limitation period. On the other (as Sedley LJ points out in his judgment), they were potentially giving rise to a binding compromise that would leave Mr Ashcroft paying the debt until 2402 (!) but with a defence to any proceedings (such as the present) so long as he made his payments.

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A holding note: Coombes v LB Waltham Forest

Published
by
Dave
on 11/03/2010
in FLW case note and Possession
. 0 Comments

We have been aware of Coombes v LB Waltham Forest (Sec of State intervening) noted at [2010] All ER (D) 59 and on Lawtel, decided on 08.03.2010 in an extempore judgment (Cranston J), but waiting for the full transcript to be provided by the High Court.  The case concerns the compatibility of section 3, Protection from Eviction Act 1977 with Articles 6 and 8.  The relevant part of Section 3 says:

(1) Where any premises have been let as a dwelling under a tenancy which is [neither a statutorily protected tenancy nor an excluded tenancy] and—(a) the tenancy (in this section referred to as the former tenancy) has come to an end, but (b) the occupier continues to reside in the premises or part of them, it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises.

Mr Coombes had lived in the property for around 54 years with his parents.  On their death, the LA served an NTQ on him.  He claims to have a secure tenancy and that he should have been dealt with through the allocation scheme.  Those claims were stayed pending a hearing in the High Court of his counterclaim on Articles 8 and 6.  On Article 8, the claim was based on his inability to bring his personal circumstances into account in the section 3 proceedings; on Article 6, that section 3 does not allow a determination of his civil rights before a fair and impartial tribunal.  The former point seems strong to me, the latter less so.

Cranston J found against Mr Coombes on both grounds but also granted leave to appeal (although not a leapfrog to the SC).  Cranston J seems to have suggested that an Article 8 defence could be raised in the county court and “The requirement to seek a possession order, rather than to recover possession without any supervision by the court, could not be incompatible with art 8. Coupled with other legislation, s 3 did not fall within the exceptional category of cases which were beyond the boundary of democratic solutions to the problem of allocating scarce public housing.” On the Article 6 point, the note is not exactly full but suggests that Cranston J suggested that the occupier has full access to the court for the determination of his claim.

More to follow on receipt of the transcript…

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Rent arrears management – boring title, excellent report

Published
by
J
on 10/03/2010
in Allocation, Assured Shorthold tenancy, Benefits, FLW article, Housing law - All, Possession and assured-tenancy
. 0 Comments

Is it too much to hope that – finally – the Government might take steps to ameliorate and / or prevent the use of Ground 8?

During the passage of the Housing and Regeneration Act 2008, the Government gave a commitment to look again at the use of inter alia, Ground 8 in the social housing sector.

A group of scholars was assembled for this purpose: Pawson, Sosenko, Cowan, Croft, Cole and Hunter and, they have now reported. I suggest everyone reads “rent arrears management practices in the housing assocation sector” because, frankly, it is an impressive piece of work, detailing historic, current (and hinting at future) trends.

The authors surveyed all housing associations in England, with some 70% responding to the questions raised. Six particular housing associations were chosen to provide detailed case studies and 106 individual eviction files were considered. The headlines are:

(a) mean rent arrears have been falling across the sector, down to 5.3% of collectable rent in the three years to 2007-08. Traditional associations tended to have higher rates of arrears than those involving stock transfer;

(b) housing benefit claimants have – generally – benefited from improved efficiencies in HB administration, with the average number of days to process a new HB claim down to 25, from 33. However, more than a quarter of associations admitted to having issued proceedings in order to pressure the local authority to process a claim;

(c) the rate of rent arrears evictions fell to 2007-08, but experienced a slight increase in 2008-09. Eviction rates varied across the country, with the Midlands having the highest rates and London the lowest;

(d) the majority of associations treated rent arrears recovery as a “specialist” area with staff who, well, specialised in recovery of such monies. Almost half of associations also employ specialist in-house welfare benefit advice staff to assist tenants;

(e) around 25% of associations admitted using Ground 8, although more than 50% of associations in London used it. The most common reason for using Ground 8 was the level of the arrears or where a tenant fails to make contact with the association to discuss the situation.

The report concludes that, were Ground 8 to be abolished, it would not have a significant impact on the arrears carried by HAs.

One final point – could it be that the TSA has delayed in publishing this report? Some of the terminology and phraseology suggests to me that this was ready for publication towards the end of 2009.

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Richardson v Midland Heart appeal is no more

Published
by
NL
on 05/03/2010
in Housing law - All, Leasehold and shared ownership, Possession and assured-tenancy
. 2 Comments

We have had confirmation that the appeal of the decision in Richardson v Midland Heart (our detailed note here), on shared ownership, assured tenancies and leasehold interests, has been discontinued.

Rumour has it that there is another appeal in a similar shared ownership case due fairly shortly, so this may well not be the end of the matter.

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Don’t forget to file and serve…

Published
by
J
on 03/03/2010
in FLW case note and assured-tenancy
. 9 Comments

Cadogan v Chehab [2009] EWHC 3297 (Admin), (only available on Casetrack) is noted in the current edition of Legal Action, but, so far as I can tell, hasn’t been picked up anywhere else. It’s only worthy of a short note though, which is set out below.

Chehab was the assured tenant of a flat owned by the appellant. The tenancy had arisen upon the expiry of a long leasehold interest. The rent had been agreed at £17,000 p.a. but, in 2008, the landlord served notice under s.13, Housing Act 1988, seeking to increase the rent to £29,120 p.a. and, in due course, the matter was referred to the Rent Assessment Committee.

Both parties put in evidence from a surveyor and were represented by their surveyors in the hearing. Following the hearing, the surveyor for the tenant submitted an additional report. The report was sent to the RAC but not to the landlord (the tenant apparently thought the RAC would forward a copy which, to be fair, it appears to have done with other, earlier, documents). Based partly on that supplemental report, the RAC set the rent at £22,500 p.a. The landlord appealed.

The appeal was allowed. It was wrong of the RAC to have made a decision based on the supplemental report without allowing the landlord to respond. Although the RAC appeared to have a practice of forwarding documents to the other party, it was advisable for the parties themselves to ensure that their documents were provided to the other side.

In addition, the RAC had erred in not taking into account the additional security of tenure conferred on an assured tenant and should have reflected this security in the rental level. The Judge declined to rule on what would happen if, taking that security into account, the RAC set the rent at more than £25,000 (such that security of tenure would be lost, as the tenancy could no longer be an assured tenancy).

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Throwing it out there

Published
by
J
on 03/03/2010
in Assured Shorthold tenancy, Uncategorized and assured-tenancy
. 7 Comments

A friend of NL (who will remain nameless unless he wants to out himself in the comments) has asked if we would post a question about statutory periodic assured tenancies, in order to try and generate a bit of debate (and, perhaps, even work out the answer to this question). We’re always keen to help, so, here is the question. Comments very gratefully received, although, as ever, you get extra marks for showing your working:

Facts

Imagine, if you will, that you have an assured tenancy for a year from 19th January. The agreement provides for a monthly rent payable in advance on the 1st of every month. Upon the expiry of the fixed term, a statutory periodic tenancy arises under s.5, Housing Act 1998.

In that situation, are the monthly periods of the tenancy from the 19th to the 18th or from the 1st to the last?

Why does this matter?

It matters in at least two contexts.

One, obviously, is with regard to the requirement of section 21 (4), Housing Act 1988 that a notice requiring possession served after the end of a fixed term tenancy must require possession after a day which is the last day of one of the periods of the tenancy (although, in practice, one imagines that a notice with a “saving clause” (Lower Street Properties v Jones) would avoid this problem).

The other is in the context of a notice of rent increase under section 13, 1988 Act which is required to propose a new rent with effect from the start of a period of the tenancy starting not less than a minimum period in the future.

This latter situation is more important, since uncertainty in the period could be used to attack (and potentially invalidate) the s.13 notice and lead to an argument that rent has been demanded (and paid) which was not due.

I’ve not provided the reasoning of our correspondent, because I don’t want to influence anyone. I’m sure he’ll join in with comments though.

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Repeat Players

Published
by
Dave
on 02/03/2010
in FLW case note, Licences and occupiers, Possession and Uncategorized
. 6 Comments

[with apologies to the most cited, and brilliant, socio-legal article: Marc Galanter, "Why the 'haves' come out ahead: Speculations on the limits of legal change"]

Mr Justice Beatson dismissed a renewed application for judicial review in R(Husband) v Solihull MBC [2009] EWHC 3673 (Admin).  The claim was pursued on Mr Husband’s behalf by Stephen Cottle, who is described in the transcript by Beatson J as a repeat player.  In Galanter’s classic, it was argued in part that repeat players generally may have the advantage over “one-shotters” partly because they get to know how the trial process works.  Unfortunately for Mr Cottle, the only advantage of his repeat player status was that he retained Beatson J’s clerk’s e-mail address.

The other repeat player is the subject-matter of the application: is the rule in Hammersmith & Fulham LBC v Monk, about which we have written much in the past year or so, compatible with Article 8?  The application was refused on two grounds: first, “it is not, in the state of English law now, arguable that the unqualified right to possession by a landlord is incompatible with Article 8; or indeed, in the light of Sheffield CC v Smart [2002] HLR 34, with Article 1 Protocol 1 of the Convention” (at [8]); second, the claim was not arguable on the facts of the case in which it appeared to the local authority that the property was vacant, and so could not be argued that Solihull had not acted reasonably in acting on the NTQ served by his ex-.

Done and dusted?  I think not.  Rumour has it that Dixon is off to the ECHR; Kay v UK is on the horizon; and then there’s the CA bust-up over gateway b let alone the nine-person SC in Pinnock.  It wouldn’t be surprising if the RCJ is bursting at the seams with appeals and JRs on mandatory possession proceedings.  Maybe 2010 will be the year when we will find out if we are (metaphorically) eating quarter pounders or Royales.

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Unlawful Eviction, exemplary damages and why people don’t like estate agents

Published
by
NL
on 28/02/2010
in FLW case note, Housing law - All, Possession and Unlawful eviction and harassment
. 0 Comments

Islam v Yap and Others. Claim No: TLQ/09/1130. High Court, 20 November 2009.

This was a claim for unlawful eviction and a tale worthy of a play by Ben Jonson. There were no less than 5 defendants, and such superfluity necessitates an opening description of the nature and the character of the dramatis personae:

Mrs Islam – a homeless applicant housed by LB Redbridge on a non-secure tenancy and being the Claimant.
Mr Yap – a freeholder of the property, who granted a lease to Finebridge Lettings but appeared somewhat confused about the extent of his title and wished most ardently to sell the property to realise his investment.
LB Redbridge – a local authority under a statutory duty to secure accommodation for Mrs Islam, and which had taken a sub-lease of the property from Finebridge Lettings and and the very same time entered into an agreement whereby Finebridge would manage the letting to Mrs Islam on behalf of itself, thereby avoiding any practical engagement.
Finebridge Consultants Limited – a business, owned by Mr Kamran Nasrim, that does not concern itself with private lettings, deriving its income of £10 million from management fees paid by LB Redbridge. Despite Mr Nasrim having a 49% interest in Reptons, and Finebridge holding 2% interest in Reptons, the Court was satisfied that Finebridge has no knowledge of the unfortunate events of 26 March 2007.
Reptons Limited – being an erstwhile estate agency, now deceased, that shared offices with Finebridge Consultants Limited and which, despite having no sole agency and no instructions, sought most actively through the person of Mr Clark to effect the sale of the property owned by Mr Yap and occupied by Mrs Islam to another party, with vacant possession.
Mr Clark of Reptons – being an agent paid on commission and determined to advance himself. A man variously characterised as being very firm, very confident, bullying and threatening. A man who in hot pursuit of his commission would not fail to stoop to entering a property and refusing to leave until the tenant did, after arranging for the locks to be changed later that date.

So, Mr Yap wished to sell. He had, it seems, confused himself as to whose tenant Mrs Islam actually was, as there were a number of emails between them that seemed to show he thought of himself as her landlord. He wasn’t, of course, having let to Finebridge, who let to LB Redbridge, who let to Mrs Islam. A notice to quit had been served on Mrs Islam by LB Redbridge (actually by Finebridge on their behalf) but no further steps taken. Mrs Islam was actively seeking suitable rehousing for herself and her 11 year old and seven month old children, but without any promise of accommodation having been made. It appears that Mr Yap had convinced himself that Mrs Islam would shortly be leaving the property.

Mr Clark entirely off his own bat found a buyer for the property who wanted possession by 25 March 2007. Mr Clark told Mr Yap of this and Mr Yap agreed to the price offered and gave Mr Clark details of his solicitors.

Mrs Islam did not – could not – leave the property. Mr Clark, worried that his commission was about to vanish, called Mr Yap and said that Mrs Islam was dragging her feet and that he was going to change the locks. Mr Yap responded that this was illegal but that if Mr Clark was to do so, he ‘was not going to pay the cost’, which the Court felt fell so far short of telling Mr Clark to do no such thing as to be an acquiesence, a ‘pregnant acceptance’ that Mr Clark was going to go ahead.

Mr Clark called Mrs Islam, told her that she was a trespasser, he was going to brook no nonsense from her and that she should forget about the police. If she wasn’t out by 26 March 2007, he would come to the property and stay there until she left and that the locks would be changed. Mr Clark invoked the names of Mr Yap and, according to Mrs Islam, Finebridge as authority for what he was saying.

As set out in the dramatis personae, the Court found that there was no involvement by Finebridge, despite the business entanglements. This and subsequent actions were those of Mr Clark, Reptons and with the ‘pregnant acceptance’ of Mr Yap.

On 26 March 2007, Mr Clark went into the property and stayed there – he said for 30 mins, the Court found for a few hours – insisting that Mrs Islam had to leave. Two other people were with him. Mrs Islam had to wait for her eldest child to return from school. At that point she was evicted and the locks were changed. Mrs Islam’s main possessions were still in the house.

Unsurprisingly, the Court found against Mr Clark, Reptons Ltd (deceased) and Mr Yap. Mr Yap made ‘rather unattractive’ submissions that he had better title to the premises than Mrs Islam. In view of Mr Yap’s knowledge of the lease to Finebridge, sub lease to LB Redbridge and their consent to Mrs Islam’s continuing occupation, this was nonsense. Mr Yap had parted with exclusive occupation and had no say in the continuation of Mrs Islam’s occupation.

Damages:

General damages from the date of the eviction to the court hearing at £36 per day, being the rent chargeable for this time.

Aggravated damages against Mr Clark of £3,000.

Exemplary damages – against Mr Yap who let things go ahead and did not intervene. He realised an economic benefit from the eviction. It appears that he bought the property for £130,000 and sold at £164,000. There would be agent’s fees and the like (presumably paid to Mr Clark!) and other costs which would eat up a lot of that (this based on no evidence at all as far as I can see). An award of £5,000 would serve to show that tenants must be protected against this sort of conduct done with an eye to investment advantage.

Special damages – Mrs Islam should have taken portable items such as jewellery and a computer with her, but she was alone with two young children as against Mr Clark and his associates. It was entirely reasonable of her not to return having fled to student accommodation. There was an agreed figure for damages, but the proper figure was £2,000, not £3,000.

Comment
A very unpleasant case, and Mr Clark is clearly a real charmer. However, I’m slightly concerned at the treatment of exemplary damages here. The Court is quite right to consider the advantage sought by the tortfeasor, but this should properly be the measure of damages. Granted there was a lack of evidence before the Court on, for instance, the market value with vacant possession and with a sitting tenant, which would more properly be the measure of damages as the gain Mr Yap sought to realise. This lack is disappointing as, if the evidence was provided and the point argued, it is likely that the award of exemplary damages would have been higher. Even if there has been some evidence as to the probable level of fees and costs incurred by Mr Yap, the measure of the profit sought would be clear – and it would surely have been higher than £5,000.

Further, what the actual gain realised by Mr Yap was is not necessarily key – it is the gain he sought to make through his actions (or here lack of them). There is no requirement that a gain is actually realised for exemplary damages to be awarded, simply that a gain was proveably sought. Whether the tortfeasor’s plans were frustrated does not affect either the intention or the punitive point of exemplary damages.

I rather think that unlawful eviction cases are often brought without due consideration and evidence of the gain sought by the landlord, and without argument on the issue of the proper measure of exemplary damages. I suspect that awards that are rather higher than those now generally awarded could be obtained. But I feel a detailed post on this topic coming on…

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