Archive for April, 2009

Redolent of Improbability

Published
by
J
on 30/04/2009
in FLW case note, Housing law - All and Trusts and Estoppel
. 1 Comment

I don’t think there is any significant point of law or practice in Lemas and Sealy v Williams [2009] EWCA Civ 360, but it is a strange case (although one suspects many readers will have been involved in similarly chaotic cases at one stage or another) and worthy of a short note.

Mr & Mrs Lemas were, at one time, the joint registered proprietors of a house, with a mortgage secured in favour of Abbey National. Mr Lemas got into financial difficulties and was made bankrupt. Despite that, Mr Lemas managed to arrange for the sale of the property to Mr Sealy. Before that sale could be completed, Abbey National took possession.

Mr Williams then arrived on the scene. He offered to loan Mrs Lemas sufficient money to prevent the Abbey National from selling the property in return for a 30% stake in the property. This was accepted, £30,000 provided and a registered charge executed in favour of Mr Williams (for £60,000).

It then appears that Mr Williams (and perhaps his girlfriend) were proposing to buy the house from Mr & Mrs Lemas for £250,000, with the intention of then settling it on trust for Mr & Mrs Lemas’ children, and thus, returning the entire beneficial interest to the Lemas family. Moreover, Mr Williams was proposing to borrow £212,500 for the privilege of doing so. A trust deed was prepared to this effect.

The property was duly sold to Mr Williams and the trust established. Mr Williams then rented the property to tenants and, eventually, Mr Lemas entered into occupation of the house. Mr Williams then recovered possession but Mr Lemas broke back in.

Three sets of proceedings were then issued in Bow county court. Mr Lewis and Mr Clarke asserted that they were tenants of the property and that Mr Williams was interfering with their occupation. They claimed that Mr Sealy was their landlord. In the second set of proceedings, Mr Williams issued a claim against Mr Lemas, alleging that Mr Lemas was Mr Sealy. In the third set of proceedings, Mr Williams sought possession against Mr Lewis and Mr Clarke.

The proceedings were consolidated and the case came on for trial before HHJ Hornby in August 2007. In effect, the trial became about who owned the property. Only Mr Williams and Mr Lemas appear to have taken an active stance. Mr Williams contended that he was the owner of the property, but Mr Lemas contended that this was not so or, even if it was so, Mr Lemas was entitled to put tenants into the property.

The trial was “obviously somewhat unsatisfactory” – there had been no disclosure and no agreed bundle. The first day was apparently abandoned and the trial itself concluded over two subsequent days. Mr Lemas started to give evidence but, after lunch, declined to give any further evidence. Mr Williams gave evidence and stated that the property was not to be held on trust for the Lemas children but that someone had added this clause to the trust documentation after the establishment of the trust.

HHJ Hornby agreed and found as a fact that the property had not been included in the trust. Mr Williams was successful and a possession order was granted in his favour.

Mr Lemas sought permission to appeal. He contended that there should be a new trial and that, even if Mr Williams had not made the house subject to the trust, he had always intended that it should be subject to the trust and should be deemed to be subject to the trust. This did not impress their Lordships. Even if (which was contrary to the facts as found by the Judge) there had been an intention to settle the house on trust, this had never been done.

Secondly, Mr Lemas asserted that he had been given too short notice of the hearing. This too was rejected. Mr Lemas had never sought to adjourn the proceedings and had attended all the previous hearings, including the hearing which fixed the trial for August 2007. The fact that the case was difficult was not significant given that Mr Lemas had ample time to seek representation.

The failure to provide disclosure or a bundle was unfortunate, but did not warrant a re-trial. “The case was… in some disorder at the start of the trial… [t]hat is… not uncommon in county court proceedings in which one of the parties is not legally represented” and could not justify further adjournments.

The only point of any substance was that Mr Lemas suggested that the Judge had not taken account of the care that Mr Lemas wanted to put. That case was that Mr Williams was not the owner but had been a front man for the real purchaser, Mr Sealy. The problem for Mr Lemas is that he had not put this point to Mr Williams at any stage, despite being given ample opportunities to do so. Whilst a Judge will, of course, do what he can to assist a litigant in person, he cannot make his case for him or give advice as to how to prove his case.

Mr Sealy also applied for permission to appeal. He contended that he had never been served with the proceedings. That was, as the Court of Appeal noted, not quite the full picture. He plainly knew something of the proceedings as he had instructed solicitors at an early stage and had even applied to strike out part of the proceedings. It was, of course, a discretionary matter as to whether or not a judgment was set aside and in the present case, it was not appropriate for the Court of Appeal to deal with that matter. It should be dealt with first in the county court.

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Tenancy Deposit – it gets worse

Published
by
NL
on 29/04/2009
in Assured Shorthold tenancy and Housing law - All
. 0 Comments

Hat tip to Tessa at Landlord Law for this. There are reports on various tenant/landlord forums of tenants losing Housing Act 2004 claims for 3x deposit on unprotected deposit/lack of notification cases where the landlord has returned the deposit to the tenant prior to hearing. Here’s an example.

This approach relies on the wording of s.214, specifically:

(2) Subsections (3) and (4) apply if on such an application the court—
(a) is satisfied that those requirements have not, or section 213(6)(a) has not, been complied with in relation to the deposit, or
(b) is not satisfied that the deposit is being held in accordance with an authorised scheme,
as the case may be.

(3) The court must, as it thinks fit, either—
(a) order the person who appears to the court to be holding the deposit to repay it to the applicant, or
(b) order that person to pay the deposit into the designated account held by the scheme administrator under an authorised custodial scheme,
within the period of 14 days beginning with the date of the making of the order.
(4) The court must also order the landlord to pay to the applicant a sum of money equal to three times the amount of the deposit within the period of 14 days beginning with the date of the making of the order.

[My emphasis]
The issue is the ‘must also’ at (4). The argument runs that if the court cannot order either (3)(a) or (3)(b), because the deposit has already been returned to the tenant, that ‘also’ means that (4) cannot follow or be ordered separately.

That is quite a nifty argument, at least on the strict construction of the Act, although it runs against the purpose. It has clearly had some successes, again all at County Court level, so no binding precedent. And it leaves the landlord able to avoid penalty by returning the deposit at any point up to the door of court.

But – in strictly thinking aloud terms – I’m not so sure it is so clear cut, at least assuming that the tenancy is still in existence.

What if the tenancy agreement specifies a deposit? Or even where, if the deposit was taken as a condition for granting the tenancy agreement, there is arguably an implied term that there is to be a deposit? The tenant would be in a position to argue that the return of the deposit is not the correct result and that the deposit – which is a contractual requirement of the tenancy – should be protected. It would be open to the tenant to refuse the ‘return’ of the deposit as a breach of contract. After all, a deposit is arguably in the tenant’s interests as well as the landlord’s.

On this line of thought, the tenant should tactically claim for an order that the deposit be protected, not return of the deposit, and claim for the 3x penalty, and then refuse any ‘offers’ by the landlord to return the deposit.

If the landlord then does protect the deposit, the case faces the lottery by District/Circuit Judge of whether late compliance avoids the penalty. Some say it does, some say it doesn’t.

Or are these just the fevered imaginings of a broken mind? It has been a trying couple of days.

For a piece of statute supposedly aimed at lay people, these parts of the HA 2004 must now be in the running for the worst drafted in recent times. We need appeals on all these issues, and soon. High Court or preferably Court of Appeal.

[For all tenancy deposit case posts click here]

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Request for info

Published
by
NL
on 28/04/2009
in Housing law - All, Nuisance and Possession
. 0 Comments

Garden Court’s bulletin of 27 April includes a case note, Thornhill v Sita Metal Recycling Cambridge Ltd [2009] All ER (D) 162, on nuisance, possession of and interest in land. The upshot being that the nature of a claimant’s legal interest in land is by the by for a claim in nuisance, assuming that they are in possession of the land. Granted this is strongly suggested in Hunter v Canary Wharf, but unusual to see a judgment specifically on the topic.

It isn’t on Bailii or indeed Lawtel yet. I’d very much like to do a note on it (and it could also be very useful for me right now as well).

Does anyone have a transcript or copy judgment that they can send me? I’d be very grateful.

[Edit - I now have several copies of the note. Thanks to all. Apparently the full judgment isn't out yet.]

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Constructive trust and misrepresentation

Published
by
NL
on 28/04/2009
in FLW case note, Housing law - All and Trusts and Estoppel
. 0 Comments

Qayyum v Hameed & Anor [2009] EWCA Civ 352 is a case with a complicated background – it originated in the collapse of BCCI, for heaven’s sake – but thankfully, the issues in this appeal were relatively straightforward, if novel.

In 1991 Mr & Mrs Qayyum jointly purchased a house. In July 1991, Mr Q declared in a deed that he held his interest on trust for Mrs Q absolutely and covenanted to execute a transfer if called upon to do so. The deed was not stamped, but apparently on the undertaking of Mrs Q’s solicitors to do so, this was not an issue.

In 2003, in litigation against Mr Quayyum, which was BCCI related, Mr Hameed obtained a freezing Order over Mr Q’s assets, including his interest in the property. In June 2004, Mr & Mrs Q applied to Nationwide BS for a mortgage of £200,000. This was in part to pay Mr Q’s legal fees and in part to cover works and service charges on the property. Mr Q believed, wrongly, that the freezing order prevented him from paying legal costs out of his existing, frozen, assets and this is what he told Mrs Q. They agreed to restore Mr Q as joint beneficial owner of the property, to avoid breaching the freezing order. In September 2004, the charge was executed and both Mr & Mrs Q were covenantors.

In June 2005, after success in his litigation, Mr Hameed obtained an interim charging order against Mr Q’s beneficial interest in the property. In related proceedings, Mr Q relied on the 2004 agreement to include half the property amongst his assets.

IN July 2005, Mr & Mrs Q agreed that between themselves, the mortgage would be treated as being against her share of the property. Also at this time Mrs Q informed her solicitors she no longer relied on the 1991 deed.

When Mr Hameed applied to make the charging order final, Mrs Q’s solicitors wrote saying that Mr Q no longer owned 50% of the interest in the property and that she would contest his interest on the basis of money she had spent on improvements (s.37 MPPA 1970), and on the basis that her agreement to his having a share was due to a mistaken belief based on Mr Q’s representations about the freezing order.

The charging order for $1,115,396 was made final in February 2006 and, following Mr Q’s bankruptcy, Mr Hameed obtained a charging order against Mrs Q’s interest in the property for £20K. Mr Hameed then applied for an order for sale and a declaration of the beneficial interests of Mr and Mrs Q in the property.

At first hearing, the Court found that the 1991 deed was valid, but that when Mr Q acted on the 2004 agreement by entering the mortgage, it gave rise to a constructive trust of equal shares. This was despite the misrepresentation. There was no subsequent agreement to revert to the 1991 deed, but even if there had been it would not have satisfied the requirements of a constructive trust as it had not been acted upon. The expenditure on improvements by Mrs Q was not substantial and so the MPPA s.37 claim failed.

On appeal, with only Mrs Q represented and Mr Hameed in person, Mrs Q’s argument was that:
1. The court would not give effect to the 2004 agreement because it was procured by misrepresentation.
2. There was no evidence that Mr Q had acted to his detriment in reliance on the 2004 agreement.
3 There was no detriment to Mr Q in entering the mortgage agreement, or it was negligible.

At hearing, Mrs Q also sought permission to argue that if a constructive trust arose from the 2004 agreement, there was a subsequent oral agreement in late 2005 transferring the beneficial interest to Mrs Q alone.

The Court of Appeal held:

1. On detriment, there was no obligation on Mr Q to enter the mortgage agreement, which he did on the basis of the 2004 agreement. Although Mrs Q may have agreed to take on the liability for servicing the mortgage, in September 2004, Mr Q was making himself personally liable under the mortgage agreement, so there was clear detriment. It would be unconscionable to leave him with that liability but without the benefit of the property interest.

2. On misrepresentation, there was no authority on whether an agreement induced by innocent misrepresentation could give rise to a common intention constructive trust. But it was clear that, in a contractual setting, this was not a misrepresentation that would have led to rescission, as the Court could not restore the parties to their former positions, in view of the mortgage liability. Mrs Q’s argument that the Court should be more flexible in cases where the court is being asked to recognise a right that, but for the court’s recognition, would not exist fell, as on constructive trust, the trust comes into existence prior to the commencement of proceedings and the court merely declares its existence as a subsisting property right, unlike an order for specific performance. Stack v Dowden applied – the court is searching for the parties’ intention, not for the result the court considers fair.

The principled approach would be to consider the approach of equity if there had been a claim for rescission of an agreement immediately after the date on which the trust was said to have arisen. On that basis it would be an unusual case where the court would refuse rescission for innocent misrepresentation on a binding agreement, but at the same time allow the misrepresentation to prevent the creation of a constructive trust.

3. On the new ground of appeal, the judge below had held that there was no 2005 agreement sufficient to reverse the 2004 agreement. The evidence presented gave no reason to overturn that decision, given the varied and varying assertions of Mrs Q about this period.

Appeal dismissed.

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Tenancy Deposit on 'Renewal of Tenancy'

Published
by
NL
on 23/04/2009
in Assured Shorthold tenancy, FLW case note and Housing law - All
. 0 Comments

Our grateful thanks to the Painsmith blog again for news of another Tenancy Deposit case (and for giving me something to write about in these case bereft times).

This is a County Court case on the issue of ‘renewal’ of a tenancy that started before April 2007 and the introduction of the tenancy deposit rules. Where a deposit was taken for a tenancy prior to April 2007 there is no requirement for it to be protected. But when the tenancy is subsequently ‘renewed’ – actually a new assured shorthold tenancy – but the deposit ‘held over’ from the previous tenancy, does the deposit need to be protected?

This has been the topic of some argument, focusing on the definition of ‘receives a deposit’ in s.213 Housing Act 2004. My view has always been that this did not mean solely the physical transfer of cash or cheque and that the parties’ agreement that the deposit should be transfered to the new tenancy constituted the landlord ‘receiving’ the deposit.

I’m glad to see that HHJ Cryan at Clerkenwell & Shoreditch County Court agrees. This is not, of course, a binding judgment and other County Courts may well find otherwise, but I presume that the Clerkenwell District Judges will follow the Circuit Judge on this one.

I’m aware that Francis Davey, an NL contributor takes another view. Over to you, Francis?

As Painsmith’s blog rightly observes, this leaves the issue of when a fixed term assured shorthold lapses into a periodic tenancy under s.5 HA 1988 without a new AST being agreed. The weight of opinon seems to be that this is a continuation of the AST, but s.5 states that the periodic tenancy arises at the expiry of the fixed term tenancy. Arguably a new (periodic) tenancy and thus requiring deposit protection? No-one has run this yet…

[For all tenancy deposit case posts click here]

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Miscellany

Published
by
NL
on 21/04/2009
in Housing law - All and Various (non-housing)
. 0 Comments

In the continuing absence of anything like actual case law, here are some news items and catch up bits on previous stories.

The Government has announced the availability of its Homeowner Mortgage Support Scheme. This is available for those with mortgages up to £400,000 and savings under £16,000, who have suffered a sudden drop in income. They must currently have mortgages with a limited list of providers (Lloyds Bank Group which includes Halifax and Bank of Scotland, Northern Rock, the Royal Bank of Scotland which includes NatWest and Ulster Bank, Bradford and Bingley, Cumberland Building Society, and the National Australia Bank Group which includes Clydesdale and Yorkshire Bank. So, largely those who have significant public ownership/capital injections). The mortgagors who apply will be able to reduce their mortgage payments to 30% for two years. The missing amount will be repayable later, so effectively an arrears to capital scheme, but the lenders are underwritten on the deferred amount by the Government/taxpayer. The amount of underwriting available is estimated to be enough for up to 40,000 mortgagors.

Nearly Legal, we will freely admit, runs the risk of being London-centric. We do our best, yet still most, but not all, of us are London based. So we’re happy to get news of the forthcoming first annual general meeting of the Yorkshire Housing Law Practioners Association on 7 May. A PDF flier with details is here.

Barrister and editor of the employment law updates, Daniel Barnett has broken through his £10,000 charity fund raising target on the 10th anniversary of the email updates within two weeks of announcing it. Excellent work and all further donations are sure to be gratefully received.

And lastly comes news of a participant in one of this blog’s favourite (by number of comments and number of page views) Naughty Step posts. According to the Estates Gazette, Shamim Karim is suing Foxtons. Shamim Karim was, lest we forget, struck off as a solicitor for serious and repeated dishonesty. (Am I alone in thinking we can do with a better term than ’struck off’. Vicars are defrocked, barristers disbarred, Surely solicitors should be ‘unrolled’. The campaign starts here.)

Now, like an English tourist stumbling into a corrida, this is one of those fights that leaves you unsure who to root for, but watching in horrified fascination. On the one hand, Shamim Karim, found to be responsible for dishonest appropriation of client funds in the hundreds of thousands, or on the other, well, Foxtons, fresh from their latest defeat in the Court of Appeal by the Office of Fair Trading. But the reported claim is as follows…

The Karim house in Esher (oh fragrant Esher) has been repossessed by the Furness Building Society, who instructed Foxtons on the sale. Shamim Karim claims that Foxtons reduced the price of the property against her instructions and is claiming £100,000 in damages in breach of contract and deceit.

As it was apparently the Furness BS that instructed Foxtons on the sale, I must confess myself slightly puzzled as to the privity of contract, but no doubt the report is lacking salient details. Foxtons, meanwhile, claim that Shamim Kaim failed to grant access for viewings or return phone calls ‘within a reasonable time’, thereby deliberately frustrating its efforts to secure an offer, and for this reason it resigned as agent.

You can pick sides if you want, but NL is sitting this one out as a disinterested, but entertained, observer. Always keen on Tauromachia, I’m just trying to work out who is the torero and who the bull.

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Searching around …

Published
by
Dave
on 20/04/2009
in Allocation and Housing law - All
. 0 Comments

NL set a kind of challenge.  There hasn’t been anything interesting I could find, but there is a kind of footnote to allocations by way of a circular issued by CLG under section 169, Housing Act 1996, to honour a commitment made to members of the armed services and to give guidance on the application of s 315, Housing and Regeneration Act 2008 (which redrew the local connection boundary in respect of service personnel). Para 5 of the Circular says that service personnel who are seriously injured or disabled in action should be given a “high priority” in recognition of their service. And para 8 says that where authorities use the additional preference criterion they should add the following: “any applicant who needs to move to suitable adapted accommodation because of a serious injury, medical condition or disability which he or she, or a member of their household, has sustained as a result of service in the Armed Forces”.

Section 315 essentially creates a local connection for service personnel with the areas where they resided or were employed. Where authorities use local connection as a priority tool for Part 6, they are also reminded that serving or former members of the armed forces may have a local connection through previous residence in the district as a result of a former posting in the area while serving in the Armed Forces (para 12(b)).

There we go – I suspect this may have more impact in some areas than others.

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Tumbleweed

Published
by
NL
on 20/04/2009
in Housing law - All
. 0 Comments

It’s not that we’ve stopped posting lately, it’s just that there has been nothing to write about.

There is lots to come – Weaver v L&Q in the Court of Appeal, Moran v Manchester, Aweys v Birmingham in the Lords (all heard, I believe, and judgments awaited); and the probably imminent but yet to be fixed start date for the Tolerated Trespasser provisions of Schedule 11 of the Housing and Regeneration Act being just the highlights.

But right now? Nada, niente, rien, zilch and diddly-squat. In short, nothing at all. Not even a Judicial Review costs hearing or semi-interesting LVT decision.

Mind you, if all that stuff comes down at once, I’ll be complaining…

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On the Naughty Step- allegedly

Published
by
NL
on 16/04/2009
in Various (non-housing)
. 0 Comments

The CAB in Wales appears to have branched out into inadvertent wealth re-distribution, allegedly by way and end of Dale and Sally Foster now on trial at Swansea County Court.

The Fosters ran the CAB office at Ammanford, Carmarthenshire, together. In fact, they were the main paid employees of the branch. What isn’t clear from reports is quite how much the Fosters were paid, although Mr Foster was on £9000 for a 30 hour week as an assistant when he started in 1997 and Mrs Foster was the manager of the branch. However, the police, the CPS and, one presumes, the CAB were fairly sure that their wages didn’t account for an alleged spend of £650,000 up to Easter 2006. In fact the CAB is pretty sure that they hadn’t contracted for the additional £150,000 salary over 5 years ‘over that to which they were entitled’. Oh and a £76,000 expenses claim which belatedly ‘flabbergasted’ the chair of the trustees. Prosecutorial eyebrows were further raised at a spend of £57,000 between October 2003 and January 2004.

Of that 57K, the prosecution state that £17,000 went on preparations for and going on a ski trip to the Whistler resort in Canada, including stayovers at the Ritz and the hotel Carnaby Tower (which as far as google can see, doesn’t exist anymore) on shopping trips.

But the true horror of the Foster’s alleged offences lies in the detail of the rest of the spend of £40,000. £8,000 on designer furniture may be fair enough but £1300 on vinyl wallpaper is inexcusable by either criminal or aesthetic standards.

The prosecution claims that in that four month period, the Fosters spent £2000 on champagne and fine wine. But two years later, their alleged reign of terroir was at an end when, at Easter 2006, they posted the keys to the CAB office through the door of Mr Bell, a local solicitor who was acting as bureau chair, and quit their work – initially one presumes to spend more time with their wallpaper, and then shortly afterwards to head for France. According to Mr Bell, they left behind an office which ‘appeared to have been emptied of most of its records and even its computer system had been wiped clean’. But he found some of the expense claims in a box, at which point his flabber was gasted.

Allegedly, the temptation became all too much when the Ammanford office won a contract to provide phone advice for the whole of Wales, worth £1.2 million, plus sundry other grants. (Any imputation on the wider provision of telephone only advice contracts is to be avoided.) The prosecution suggested that the contract meant the CAB Office was ‘awash with cash’, which is not, I suspect, a description most CABs would recognise at all.

One trusts that the truth will out in the course of what is apparently to be a six week trial. The Fosters are, of course, innocent of any criminal wrongdoing until proven otherwise, but there are no reports that they have denied their choice of wallpaper, and for that alone – until a verdict is given – they go on the Naughty Step.(1)

(1) I have the qualifications that officially allow me to make this kind of aesthetic value judgement. It is a bit like being admitted to the roll, but takes longer and pays less. The only benefit is being able to point at some things in the Wallace collection and say loudly ‘this is third rate rubbish’ without shame or uncertainty.

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Bits from LAG and nuisance & Art 8

Published
by
NL
on 06/04/2009
in FLW case note, Housing law - All, Nuisance, Possession, Unlawful eviction and harassment and secure-tenancy
. 0 Comments

There are several cases in the latest LAG updates that we haven’t covered and that are interesting. Thanks as ever to Jan Luba QC and HHJ Nic Madge for the LAG reports. There are two brief notes on County Court cases and a more sizeable one on Dobson v Thames Water, a Court of Appeal case on nuisance and Art 8 infringement that we had somehow missed from January and which isn’t discussed at length in LAG.

Southwark LBC v Jackson and Jackson, Lambeth County Court 27 January 2009
Mr & Mrs Jackson were elderly joint secure tenants. Mr Jackson had died, leaving Mrs Jackson as sole tenant. Southwark served Notice to Quit on the basis that the tenancy had ceased to be secure due to failure to occupy as only or principal residence. Possession proceedings were brought on that basis, with alleged unlawful subletting and rent arrears. Mrs Jackson did not attend and an outright order was made, followed by warrant. Mrs Jackson applied to set aside the possession order on the basis that she was not living at the property because repairs had not been completed.

At the hearing of the set aside application, Mrs Jackson argued that the Notice to Quit was invalid, giving only 27 days notice rather than 28, and the saving clause didn’t save it. This had not been raised or noticed at the possession hearing. The Court had a power to set aside the order under CPR 3.1(7). Southwark acknowledged the notice was deficient but argued it should not be set aside just for that reason.

The Court, HHJ Gibson, set aside the PO. If the first Court had considered the deficient notice, the PO would not have been made. To let it stand would be to force the tenant from her home other than in accordance with the law. This would be a breach of convention rights.

In addition the Court observed the initial possession hearing had been dealt with very summarily. The DJ did not appear to consider whether Southwark had made a prima facie case that the tenancy had ceased to be secure. Southwark’s own pleading mentioned the presence of someone who said he was the tenant’s grandson, but there was no address to whether or not he was a caretaker for the tenant. From Southwark’s pleadings, there appeared to be significant doubt about whether the tenant had actually parted with possession, which circumstances would also make the possession order unlawful.

That point, that to give possession on anything less than a lawful Notice is a breach of the tenant’s convention rights, could be useful to raise with a DJ otherwise minded to condone ‘minor errors’ or ‘oversights’ in notice. Likewise, to fail to set aside a PO based on defective notice.

Also useful is the insistence that even an undefended summary possession hearing should involve some scrutiny of whether the prima facie case is sufficiently made out.

Evans v Ozkan and Hussein, Bromley County Court 6 February 2009.
Unlawful eviction and harrassment quantum. Mr Evans was a private assured shorthold tenant. The landlords knew he was on benefits before the tenancy began. After about a month, following a delay in HB, Mr Hussein visited, intimidated Mr Evans and demanded £1000. Soon afterwards, Mr Evans returned home to find some of his belongings on the pavement and the defendants throwing out more. Mr Evans was verbally intimidated by Mr Hussein.The police were called and (helpful as ever in cases of illegal eviction, which is, as they constantly need to be reminded, a criminal offence as well as civil one) arrested Mr Evans. On his release later that day, Mr Evans found many of his belongings smashed on the pavement and smelling of urine. Mr Evans slept in his car and returned the next day to find the locks changed. The Defendants followed him to a pub, threatened him with baseball bats and demanded £1000, or his remaining belongings would not be returned. Mr Evans applied as homeless and was eventually rehoused 63 nights later, during which time he was homeless. He claimed for trespass, harassment and unlawful eviction

The defence was struck out for failure to comply with directions and the Defendants represented themselves at hearing.

HHJ Hallan awarded: general damages of £250 per day that Mr Evans was homeless (£15,750), and interest from the date of rehousing; special damages of £5000; aggravated damages of £1000 and exemplary damages of £2000, with interest from date of eviction. Damages otherwise payable under the Protection from Harassment Act 1997 were part of the aggravated damages. Exemplary damages were levied as the Defendants had sought to avoid the due process of law and its attendant costs (presumably, this would apply to virtually any unlawful eviction?).

And – how did we miss this one? – Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28. Going beyond the LAG note, this is a claim in nuisance,negligence and under Art 8 of the convention. Following a hearing of preliminary issues, the Court of Appeal was asked how damages for breach of Art 8 should be assessed, given that the claimants’ enjoyment of their homes had been impaired. The Court was also asked whether such damages would be payable in addition to those in nuisance and negligence.

The issue is that, following Hunter v Canary Wharf [1997] AC 655, damages for private nuisance at common law appeared to the Judge in the court below to be based upon these paras in Hunter:

184(1) That damages awarded for nuisance, where there has been personal discomfort, are assessed on the basis of compensation for diminution of the amenity value of the land rather than damages for that personal discomfort.

184(2) That damages for diminution of amenity value are measured by reference to the size, commodiousness and value of the property not the number of occupiers.

184(3) That damages for compensation for diminution of amenity value of the land may be reflected either in diminution of capital value or rental value.

184(4) That damages for diminution in value frequently raise difficult issues of assessment which can usually be resolved by expert evidence. If such assessment is not reasonable or practicable then the principles on which damages are assessed are sufficiently flexible to do justice between the parties by arriving at a sum for general damages for loss of amenity.

Whereas Art 8(3) says that damages for breach of art 8 rights must accord ‘just satisfaction to the injured party’. the Claimants suggested that this would either potentially ‘top up’ an award of damages for nuisance, or enable separate damages for those without a proprietary interest, but resident – a child or foster-child, for instance.

The Court of Appeal held that:

Damages in nuisance are for injury to the property, not the sensibility of the occupier, Hunter v Canary Wharf.

Where this is for ‘transitory’ nuisance such as loss of amenity, the calculation may be based on loss of market value, but this must take the personal experience of all the occupiers into account, not just that of the person with the proprietorial interest. So the actual impact on the occupiers is relevant. (Certainly non-occupation means no damages, unless the property was being sold or rented and suffered a loss in value, or there was physical injury [para 34]).

The award of damages in nuisance is not to compensate other occupiers of the property, only the person who has the right to sue in nuisance.

Where the creator of the nuisance is a public authority, then Art 8 rights will be engaged. However, the Lords decision in Marcic v Thames Water Utilities Ltd [2004] AC 42 means that where no negligence is alleged, not even the owner of the property would have an Art 8 claim, let alone the other occupiers. So this is a limited issue, for nuisance caused by negligent public bodies only.

Under the convention:

where a public authority has been found to have acted “unlawfully” the court “may grant such relief or remedy …as it considers just and appropriate”. No award of damages is to be made unless, taking account of all the circumstances including any other relief or remedy granted in relation to the same act, the court is satisfied that the award is necessary to afford just satisfaction. In determining whether to award damages, or the amount, the court must take into account the principles applied by the European Court under Article 41. [para 41]

Strasbourg case law has given little guidance on the award of damages. This is a test case, where the claim is, in part, on behalf of an identified individual who has not, personally, had ‘reparation’ under english law. However, it is not irrelevant that this person’s parents may be awarded damages under nuisance and what sums they are awarded. This is part of a consideration whether it is necessary to make an award for just satisfaction, or would a declaration of infringment suffice, alongside the award of damages to those with a proprietorial interest. Where the issue is loss of amenity, the effect on the whole household should already have been considered as a relevant factor – see above – and this would be highly significant in considering the amount, if any, of Art 8 damages to the non-proprietorial occupier.

On whether an Art 8 ‘top-up’ of damages over those calculated for nuisance may be made, the Court of Appeal admits the possibility, but considers it very improbable indeed that Strasbourg would make an award above and beyond an award in damages for common law nuisance [para 50]. Normally, such damages should be considered sufficient.

As to co-owners, if both are in occupation, the effect of the nuisance on each of them should have been considered in the assessment of damages, so splitting the award does each justice. Where one co-owner is not in occupation, for a loss of amenity claim, it would be inequitable for them to claim a share of the award.

So, in a nutshell, it will usually be the case that the claim in nuisance and negligence by the person with a proprietorial interest in the affected property will, if the relevant factors are taken into account in calculating loss of amenity, also constitute just satisfaction for the other occupiers for the purposes of Art 8 infringement. This is because the experience of the whole household is a relevant factor for assessing loss of amenity value.

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