It wasn’t me.

Lee v Lasrado [2013] EWHC 2302 (QB)

On the whole, trying to appeal an unlawful eviction judgment and quantum decision against you on the basis that you are not actually the landlord is not an approach to be recommended. This appeal decision in the High Court can be taken as a reminder why this is so. There is also a reminder of the limits of Housing Act 1988 section 27(7)(a) mitigation by conduct of the tenant and of a section 27(8)(a) defence.

Ms Lee was the tenant of a bedsit in an HMO, with a tenancy beginning in Summer 2008.She alleged various acts of harassment, culminating on 20 June 2009 when she returned to the property to find locks changed and a note saying she had been evicted. Ms Lee issued proceedings for an injunction for re-admission and damages. The interim injunction was granted on 23 June 2009 and personally served on Mr Lasrado. He did not comply. On the return date, 9 July 2009, a full injunction requiring re-admission and return of removed belongings was made. This too was personally served on Mr Lasrado. He did not comply. A committal order was made on 16 July 2009, for 18 months imprisonment, but for unstated reasons, this was not executed.

On 13 October 2009, Ms Lee was given default judgment on her claim for damages, with hearing for assessment of quantum set down. Mr Lasrado then applied variously to set aside the orders of 23 June, 9 July and 13 October, and also the committal order of 16 July. In January 2010, these applications were all dismissed. There was no appeal of these decisions.

Later in January 2010, the Court awarded Ms Lee damages of £24,600 and costs. The warrant of committal was set aside and permission for Mr Lasrado to appeal refused. Mr Lasrado brought the present appeal, considerably out of time, but he was given permission.

The appeal was also treated as an appeal against the default judgment of October 2009.

The appellant asserted that the claim for the mandatory injunction should not have been made against him because he was not the landlord of the property but merely the agent for his wife who is the registered owner of the property. Reliance was placed upon the definition of “landlord” in section 27(9) of the Housing Act 1988 as “the person who, but for the occupiers right to occupy, would be entitled to occupation of the premises”. It was asserted that any claims for damages should have been made against his wife as the landlord. The other ground of appeal is that the hearing on 10 September 2010 was conducted by His Honour Judge Behar in an unfair manner because the appellant was given no opportunity to present his defence to the claim for damages and, in particular, a defence pursuant to section 27(8)(a) of the 1988 Act which provides that it shall be a defence for the landlord to prove he believed and had reasonable cause to believe that the residential occupier had ceased to reside in the premises. In his Statement in support of his appeal, the appellant stated he was overwhelmed by the attitude of the judge. He made a number of complaints:

i) He had had insufficient time to address the respondent’s case because her witness statement had been served in the day before the hearing;

ii) His own statement in reply had been hurried and so did not include his defence that he was not the landlord and his reliance upon the conduct of the complainant in mitigation of damage: see section 27(7)(a) of the 1988 Act.

iii) The respondent’s statement contained no particulars of her claims for damages;

iv) When his assistant, Mrs Florence Cudd telephoned the court the day before the hearing she was told by the court that he would not be required to speak and that there was no need for him to bring his witnesses to court because only his written evidence would be considered.

In short, ‘it wasn’t me’, ‘I thought she’d gone so, and she behaved badly so the damages were wrong’ and ‘it wasn’t fair’.

In response, Ms Lee argued that the first time that Mr Lasrado had stated he was not the landlord was when he applied for permission to appeal. it was not raised in the courts below, where he had not contested his role as landlord or manager of the building. It was admitted that service of Ms Lee’s third witness statement was late, but substantial particulars of her claim for damages were in her two previous witness statements of June and July 2009. It was admitted that the third statement contained details of “(a) her homelessness between her eviction and the date in September 2009 when she was provided with hostel accommodation by the local authority and (b) of items of her property and their values which she has lost as a result of her eviction”.

On the s.27(7)(a) point, this was a defence only to liability, not on quantum, so would not mitigate damages, even if the evidence was reliable [I think this part of the judgment may be a little mixed up. The respondent's case o s.27(8) and s.27(7) appears conflated. NL]. The account by Ms Cudd of what she was allegedly told by the court office had first surfaced in January 2013 in the present appeal.

The High Court held:.

1. On the landlord point.

As this issue was not raised in any of the various proceedings in the County Court, it is necessary to consider the evidence. The appellant asserts his wife is the registered owner of the property and so is the landlord. Even so he admits that he was acting on behalf of the landlord and he has at no time asserted that he was not responsible for the management of the property. It follows that if his wife was the landlord she would be liable for his conduct in depriving the respondent of her occupation of the bed-sit accommodation: see section 27(3) of the 1988 Act.

The appellant has adduced no evidence to prove his wife is the registered owner of the property. This is particularly concerning because the evidence proves overwhelmingly that he is the landlord. In letters to the respondent dated 16 May and 19 June 2009, the appellant describes himself as “landlord”. In his response to the respondent’s allegations, he refers to “the usual practice with landlords” and in one response he stated “I do not take deposits from my (emphasis added) bed-sit tenants”. There is also his statement of 9 September 2010 prepared for the damages hearing in which he addressed the unsigned statement of the respondent served that day in which he dealt with every single one of her allegations and yet made no mention of his claim that he was not the landlord. Importantly, he made no such claim in the proceedings in respect of the charging order.

2. On the sections 27(7)(a) and 27(8)(a) points

The s.27(8)(a) defence was a defence on liability only and would not affect quantum. The s.27(7)(a) defence, on the tenant’s conduct, would not have availed Mr Larado. Following Regalgrand Limited v. Dickerson & Wade [1996] 74E & CR312, at 317

“The word “conduct” should be given its ordinary meaning… The subsection provides for reduction in damages provided the conduct of the tenant is such that the court concludes that it is reasonable to mitigate the damages, which I understand to mean reduce or cut down. If the court arrives at the conclusion that it is reasonable, it has to exercise the discretion given and decide whether the damages should be reduced. In some circumstances it may decide that, despite the conduct of the tenant, the damages should not be reduced and in others it should be reduced. The conclusion would depend upon all the circumstances of the case and will entail looking at the conduct in the light of the surrounding facts. If the court decides that the damages should be reduced, then it has to go on and decide what is the appropriate amount of the reduction. That is a judicial judgment which is not capable of mathematical precision. It again has to be taken in the light of all the facts.”

The conduct raised by Mr Lasrado was not sufficient to mitigate damages and in any event had been raised in his witness statement in proceedings below and the Judge had not believed the allegations.

3. On quantum and conduct of the hearing.

According to the attendance note of Ms Lee’s counsel, the damages were made up as follows:

a) General damages of £16,800 being compensation at a daily rate of £200 for the 84 days between the appellant’s eviction and her obtaining alternative accommodation in a hostel;
b) The repayment of her deposit of £400;
c) Compensation of £1,200 pursuant to section 214 of the Housing Act 2004 for the appellant’s failure to hold the deposit in an authorised manner;
d) General damages of £1,000 for the harassment of the respondent during her tenancy;
e) Special damages of £2,200 for items of her property which were not returned to her;
f) Aggravated damages of £1,500;
g) Exemplary damages of £1,500.

According to the attendance note, the hearing was fractious. “The respondent was “quite angry” when giving her evidence, especially when cross-examined by the appellant who was himself “both quite angry and very rude to the judge”. However the note recorded that the trial judge was critical of Ms Lee’s later service of her third witness statement, but accepted that much of it repeated her previous statements, and that “the only fresh matters raised were further details of the events on the day of her eviction and of the assault upon her 10 days later when she returned to the property in an attempt to recover her possessions, of her alternative accommodation arrangements until she obtained a hostel place and details of the values of her missing property.”

Mr Lasrado had requested an adjournment, but this was refused given the delay in the hearing, much attributable to him.

The appellant has provided his comments about the Attendance Note in writing. In general terms, he does not accept that it is a record of the hearing as he remembers it. He states he thought the hearing was about the warrant for committal and so was “really surprised” when the judge started talking about money”. That cannot be right, if only because the appellant responded to the respondent’s unsigned witness statement with a statement of his own in which he addressed her claims for damages. Further the proceedings had been served on him personally on 24 June 2009 and the particulars of claim and the respondent’s witness statement dated 23 June 2009 detailed her then claim for damages.

The appellant asserted the judge did not hear evidence as to quantum from the respondent and the appellant. Again that cannot be right. [...]

The evidence of Ms Cudd did not provide any support for Mr Lasrado’s assertions:

He is no stranger to the courts and it is frankly not credible that he would not have tried to appeal the learned judge’s adverse findings if, as Mrs Cudd asserts, he had been told that there was no need for his witnesses to attend. The fact is that her evidence emerged on 15 May 2012, some 20 months after the hearing and one month after the appellant applied for permission to appeal, an application which was itself some 18 month’s out of time. I have concluded that the evidence of Mrs Cudd should not be received.

The appeal court will not receive evidence not in front of the lower could unless it orders otherwise. CPR 52.11

The damages awards were not out of the appropriate ranges and the award of special damages clearly based on the Judge accepting Ms Lee’s credible evidence.

Overall:

CPR52.11(3) provides that the appeal court will allow an appeal where the decision of the lower court was wrong or unjust because of a serious irregularity in the proceedings in the lower court. In Hayes & Others v. Transco PLC [2003] EWCA Civ.1261, Clarke LJ, after setting out the provisions of the rule, said:-
“It follows that the question… is whether the decision of the judge was unjust because of a serious procedural or other irregularity in the proceedings. It is not, however, sufficient that a serious irregularity should be shown or even that some collateral injustice should be established. The decision must be unjust. As I see it, whether the decision is unjust or not would depend upon all the circumstances of the case.”
I am not persuaded that the decision of the learned judge was in any way unjust and the appeals are accordingly dismissed.

Comment

The damages are not particularly out of line with previous cases, £200 per day until alternative accommodation is not unusual and the remainder is unexceptional. It would be useful to know how exemplary damages were arrived at. My guess is the equivalent of costs of possession proceedings.

The point on s.27(8)(a) being a defence only on liability, not quantum, has to be right and is useful to have it set out.

The remainder of the appeal, in particular the ‘I’m not the landlord’ argument, seems to be deeply misconceived, not least given Mr L’s silence on this point during proceedings. It is in any even clear that he was acting as the manager of the property. It seems that a litigant in person thought they had discovered a cunning plan…

p5rn7vb
Posted in FLW case note, Housing law - All, Unlawful eviction and harassment.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +

11 Comments

  1. On the ‘I am not the landlord’ issue -

    Presumably he was acting as an agent for an undisclosed principal – his wife – and therefore so far as the third party – the tenant – is concerned, he WAS the landlord.

    Is there not also a rule that a tenant cannot ‘look behind’ the landlord’s title? Which is why a squatter can be a legal landlord. So far as the tenant is concerned.

    So the tenant here could not be expected or required to have to do research on whether or not he landlord was the owner of the property. If he is named in the tenancy as the landlord and there is nothing to indicate he is acting as agent, surely that should be sufficient?

    • Hi Tessa,

      My firm acted for Ms Lee in these proceedings. Mr Lasrado at all material times held himself out as landlord. He never raised the agency point until after he lodged his appeal in the high court. He had ample opportunity to do so in the long and protracted proceedings preceding his appeal.

  2. Pingback: Ben Reeve Lewis Friday Newsround #121

  3. But that isn’t how you assess damages under s.28 and if it was an AST the damages under s,28 ought to have been zero.

  4. The judge appears to have considered whether the landlord’s actions breached s.27, HA 1988. The only damages that follow from a breach of s.27, however, are s.28 damages. The judge, however, appears to have conducted an assessment as if the claim was brought in trespass. It may well have been, but if it was I don’t follow why so much time was spent on whether a defence under s.27 was made out.

    The whole arguments over s.27 should have been completely irrelevant because they were never going to get damages under s.28.

    • No, I think you have it the wrong way round. The appellant landlord raised the s.27 defence on appeal, alleging he had not be allowed to make it/it wasn’t considered. As there is no sign that s.27 damages were even discussed in the first instance hearing, this is a doubly hopeless appeal! The s.27 defence on appeal was dismissed in short order.

      The mitigation of damages point under s.27(7) was dismissed quickly on the basis the T’s conduct couldn’t be such as to fall under s.27(7), but as you point out, could also have been chucked out on the basis that was only a mitigation of s.28 damages, and there were no s.28 damages in the case.

  5. Pingback: CPD answers – questions on the August 2013 posts

Add a comment. (Our comments policy)

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>