Like a blind man searching for a black hat in a dark room

Heffernan v LB Hackney [2009] EWCA Civ 655 is a timely reminder of the importance of having evidence to substantiate a claim for damages.

Mr Heffernan was the freehold owner of 16 Penhurst Road, London, E9 (“the property”). The property was converted into two flats, the upper flat being let on a tenancy protected under the Rent Act 1977 and the lower flat being vacant. Mr Heffernan was in dispute with the tenant of the upper flat and, as a result, had not been receiving payments of rent from the tenant, with the alleged result that various repairs were falling due.

In September 1996, LB Hackney served four notices on Mr Heffernan pursuant to Part 5, Housing Act 1985. The notices were served under ss.189(1), 189(1A), 190(1)(a) and 372 and asserted that:

(a) the basement flat was unfit for human habitation;

(b) the exterior of the house required repairs and the flats were unfit for human habitation;

(c) the flats were in a state of disrepair that required substantial remedial works;

(d) the whole house was in a defective condition as a result of neglect.

In all cases, Mr Heffernan was required to perform specified repairs within three months. The repairs were not carried out immediately, but, rather, Mr Heffernan applied for grant aid from Hackney. For reasons which are unclear, no grant was made and, in December 1996, the right to grant aid was removed and replaced with a discretionary power on the part of the local authority to provide grant aid (see, generally, Local Government and Housing Act 1989). Hackney adopted a policy of only making grants in respect of applications made under the old regime if the application (under the old regime) had been accompanied by a builder’s estimate.

Hackney then sought to prosecute Mr Heffernan for non-compliance with the notices but this was abandoned once it became clear that Hackney could not prove that the Allied Irish Bank, the mortgagee with a charge over the freehold, had been served. This was significant because notices under ss.189 and 190 were required to be served on inter alia, mortgage companies and notices under s.372 required the mortgage company to be informed of the same.

Relying on this failing, Mr Heffernan issued proceedings against Hackney, alleging negligence and breach of statutory duty, seeking c.£100,000 by way of the cost of works undertaken, loss of rent and damage caused by Hackney’s workmen.

Hackney defended the proceedings and argued that the notices had actually been served, albeit it could not find the notices when proceedings had been issued in the Magistrates’ court. It further argued that Mr Hefferman had in his possession a letter from Allied Irish Bank confirming that the notices had been served.

The trial Judge held that a duty of care was indeed owed and that it had been breached, but that no damage had been proven. He had “no idea” how the claim for the cost of remedial works was made up and that there was no evidence of any loss of rental income or of damage being inflicted by the council’s workmen.

Mr Heffernan appealed against these conclusions. His appeal was dismissed. Aikens LJ gave the leading judgment. The Judge had been quite entitled to reject the claim for the cost of repairs as there was no evidence of any work actually being done. Lesser sums, which may have been capable of being proved, had not been pleaded and the Judge had been entitled to reject them.

The claim for the loss of rent was in the same position. Mr Heffernan had not demonstrated a causative link between the alleged negligence and his alleged loss.

The damaged caused by Hackney’s workmen was slightly different. It was clear that workmen had attended the property, but, again, there was no evidence of the actual cost of remedying any damage that they caused.

Accordingly, the appeal was dismissed.

Sedley LJ added a few words. It was “not permissible to come to court with bald assertions of the kind with which the Judge… was presented, unsupported by a single document showing payment or loss, and to leave him, as Bowen LJ once put it, like a blind man searching for a black hat in a dark room…”

Both Aikens and Sedley LJ were rather concerned about the assumed cause of action and were far from convinced that a claim in negligence could have succeeded – as a matter of law – on the facts of the present case. It was not, however, necessary to determine that point given the findings of fact made by the Judge.

Posted in Disrepair, FLW case note, Housing law - All and tagged , , , , . RSS feed for this post and comments.

About

J is a barrister in London. He loves service charges and all things leasehold law related. He also likes beating rogue landlords and mortgage companies.

8 Comments

  1. Posted 08/07/2009 at 9:36 pm | link to comment

    I must confess to a certain curiousity. Mr H was apparently about to become a solicitor at the time of the first Magistrates hearing in 2000 – this being a particular issue because he had apparently received a letter from his lender saying that they had received notices, prior to the hearing at which Hackney said they couldn’t show notice was served. LJ Aikens says “I, for my part, would regard it as a matter of concern that Mr Heffernan took the stance that he did at the Magistrates’ Court, particularly because at that stage he was shortly to become a Solicitor of the Supreme Court.” [para 23]

    I, for my part, would be concerned at even a ‘nearly’ solicitor so unconcerned about the rules of evidence and apparently ignorant of receipts.

    Mr H does not appear to be on the roll at present. I have no idea if he was ever entered on the roll, or has ceased practice, or was ceased. But he is not now a practising solicitor.

    A pity that no findings were made on the questionable question of liability on the issue of the supposedly defective notices, though.

    • J
      Posted 09/07/2009 at 8:03 am | link to comment

      In many respects the case is more interesting for what it didn’t decide than what it did. It was very surprising that Hackney accepted that it owed a duty of care to Mr Heffernan in the service of the notices. Certainly both LJ Sedley and LJ Aikens felt this was a highly debatable point.

  2. Posted 09/07/2009 at 12:54 am | link to comment

    apparently he has been elevated to the house of lords. mind you, it was him who told me, but it’s not as if he’d make something like that up, would he?

    • J
      Posted 09/07/2009 at 8:00 am | link to comment

      We should, of course, make clear that no finding of dishonesty was made against Mr Heffernan.

  3. Posted 09/07/2009 at 8:31 am | link to comment

    No imputation of dishonesty intended. But IF he had that letter from the lender and IF he had been a solicitor at the time, it would have been a clear breach of his duty to the court to have kept schtum about it.

  4. stewart myers
    Posted 09/07/2009 at 3:54 pm | link to comment

    Although all four notices were served on the same date “the first notice (under s.189(1)), stated that the basement flat was unfit for human habitation” and “the third notice (under s.190(1)(a)), stated that the basement…[was].. not unfit for human habitation…”.
    So the basement flat was simultaneously unfit and not unfit for human habitation (under the terms of the Housing Act 1985) at the same time.
    Remarkable that.
    It seems that Hackney didn’t acknowledge that the legislation was poorly written and didn’t allow the local authority to deal simultaneously with major disrepair (unfit for human habitation)and minor disrepair (not unfit)in the same let.
    We were never allowed to serve both s189 and s190 notices together in Bradford.

    • J
      Posted 09/07/2009 at 5:25 pm | link to comment

      Just another of the odd things about this case!

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