This may be one of the more esoteric points to be heard by the Court of Appeal on terms of a lease, but one of the issues in Newman v Framewood Manor Management Co Ltd [2012] EWCA Civ 159 was whether Mrs Newman was entitled to damages for loss of amenity for not being provided with a contractual jacuzzi but rather a sauna by the Defendant lessor.

While the facts may be of very limited general applicability, there are some general points about loss of amenity claims worth a look. There is also the extraordinary spectacle of an appeal on a claim worth, in the end, about £6,400 in total and where the claimant/appellant is represented by a QC and junior. One can only presume Mrs Newman was a very indignant leaseholder with considerable resources.

Mrs N took the lease of Apartment 18, on the first floor of a newly converted block in 2005. She had a previous lease of the same apartment from 1989. The Management Company was the lessor, and was a company with all the lessees as shareholders.

Apartment 18 was in the same block as the swimming pool, originally accessed via in internal stairwell. This ease of access to the swimming pool was, Mrs N asserted, one of the reasons she had taken that apartment in the first place. However, a design fault meant that there were condensation problems in the stairwell. In 2009 the Management Co. decided to block off the door from the stairwell to the swimming pool. This formed one part of Mrs N’s claim

The lease contained a covenant by the Management Co to keep common recreational facilities in good order and repair, including the swimming pool and a ‘whirlpool’. There had been a jacuzzi, but it was a domestic model and fell out of repair. The management Co. by a majority vote of the tenants, decided to replace it with a sauna, which took place. This was the second part of Mrs N’s claim.

There were further claims for damage done by tree roots to the tarmac of the drive, for failure to repair or replace gym equipment, lack of light to a steam room and damage to a wardrobe.

The company defended, in part on the basis of an exoneration clause in the lease which said:

“the … Company shall not be liable or responsible for any damage suffered by the Lessee or any servant agent or licensee of the Lessee or any member of the Lessee’s family … through any defect in any fixture conduit staircase or thing in or upon [Framewood Manor] or any part thereof … or through the neglect or fault or misconduct of any servant agent contractor or workman whatsoever employed by … the Company in connection with [Framewood Manor] except insofar as any such liability may be covered by insurance effected … by the Company.”

The insurance did not cover any of the matters claimed for by Mrs N.

At first instance, the Judge awarded £250 damages in respect of the steam room light, which had not been repaired for a long period and £1,202.50 in respect of the damage to the wardrobe. These do not form part of the appeal.

The Judge otherwise held that the exoneration clause ruled out liability for defects not covered by insurance.

On the doorway, while the condensation damp was in breach of covenant, there was no evidence of loss through diminuition in value to the apartment. The company had now obtained plans to re-open the doorway and on Mrs N accepting that this would be done within 2 months, no question of an order for specific performance. The exoneration clause ruled out damages for loss of amenity.

On the jacuzzi, while there was a breach, any damages had to take into account that the jacuzzi had been replaced by a sauna, which wholly covered the loss, though it was materially different. There would be no order for specific performance to replace the jacuzzi because the sauna was an adequate replacement and the costs of installing a jacuzzi had to be balanced against the finding of no damages.

The tree roots claim was rejected as there was no evidence that work could be done or what it would cost. It was likely that the tree was subject to a preservation order. This was trifling and not worth an award of damages.

The gym equipment claim was rejected on the basis that the equipment had now been replaced and Mrs N didn’t use the gym. Any loss was trifling.

Mrs N, rather astonishingly, appealed to the Court of Appeal.

Mrs N argued that the exoneration clause did not cover loss of amenity as it was not ‘damage’ within the meaning of the clause. Further, the clause did not cover breach of covenant, which was the cause of action here, being rather aimed at tort, such as under the Occupiers Liability Act 1957. If the Judge’s interpretation of the clause were right, it would make otiose the specific clauses for notice by the company that repairs needed to be done and obliging the company to do repairs within a reasonable time.

The company maintained that the judge was right and the exoneration clause only permitted liability for risks for which the company was insured. The clause was the mirror of the clause containing an obligation to insure.

The Court of Appeal found for Mrs Newman:

The clause has to be interpreted in the light of its factual matrix and this includes the fact that the Company is effectively owned by the lessees of all the apartments at Framewood Manor. The object of the clause is certainly to give them the benefit of any insurance held by the Company. However, the matter does not stop there. Effect has to be given to the clear wording of the exoneration clause. That wording makes it clear that the exoneration clause only applies where the Company is sued on the basis of vicarious liability. If the judge were right, the procedural provisions for giving notices of breach would be, as Toulson LJ pointed out in argument, completely circumvented and rendered otiose. The Company expressly undertook certain repairing covenants. It would be very odd indeed if, under later provisions of the lease, it was exonerated from liability for breaching those covenants unless it had taken out insurance.

Further, the term ‘damage’ did not extend to loss of amenity, as damage referred to physical damage.

The Court then turned to the appealed heads of claim.

On the doorway claim, Mrs N argued that the Judge should have made a declaration that, but for the belated undertaking to re-instate the door by the company, this was a case in which an order for specific performance would have been made, as this would be reflected in costs. The Court of Appeal declined to do so, on the basis that achieving the undertaking should be arguable in costs.

Mrs N argued that the Judge should not have found that the blockage was temporary, as it had been announced as being a ‘permanent solution’ to the condensation problem. It followed that there should have been an award of damages for loss of amenity during the blocked period as Mr & Mrs N had to walk around 19 metres round the outside of the building to get access, rather than directly via the internal stairwell. Mrs N put this at about £50 per week for the periods they were in occupation.

The Court of Appeal accepted that the blockage was intended to be permanent. The company had not investigated any other solutions to the condensation and did not do so until proceedings had been issued. Damages for loss of amenity followed:

As to damages for loss of amenity, it is not simply a question of compensating Mrs Newman for the short extra distance that the Newmans had to walk to use the pool. The loss of amenity also meant aggravation and inconvenience from having to walk outside rather than using an inside entrance. The Newmans had purchased their apartment specifically in order to have this facility. In those circumstances I would award damages for loss of amenity in the sum of £1,000 for loss of amenity. This represents in round terms the loss of amenity for one year at just under £20 per week.

On the Jacuzzi claim, Mrs N argued that the Judge was wrong not to award damages for loss of amenity, wrong not to make an order for specific performance or wrong not to make an award of damages in lieu of specific performance.

Mrs N submitted that it was not a ground to refuse specific performance that it might be too costly, or that the other shareholders were happy in a case of breach of covenant. The Judge’s finding that the sauna was a sufficient replacement for the jacuzzi was perverse and Mrs N had detailed her use of the jacuzzi in evidence. This was not a reason for refusing specific performance, or for refusing damages in lieu of specific performance. The starting point was the contractual obligation to keep the jacuzzi in good repair.

The Court of Appeal found that the Judge was right not to order specific performance. The costs of installing a new jacuzzi would be disproportionate to the loss of amenity involved and excessive. The situation was similar to the missing 18″ of depth of swimming pool in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, where an award of damages in lieu was made.

On damages for loss of amenity, the Judge had been wrong not to make an award. IN fact the Judge appeared to have considered the issue in terms of diminuition in value of Mrs N’s lease when discussing the sauna as a sufficient replacement. While the judge was right that there was no evidence of any diminuition in value resulting, he did not then reach a conclusion on loss of amenity.

While Mrs N’s evidence had not expressly stated that she did not regard the sauna as a replacement, a sauna and a jacuzzi are so different that acceptance could not be inferred from silence. A case that she had been adequately compensated by the sauna had not been put to Mrs N

In any event, the question of what her personal preferences were is not conclusive, any more than it was a question whether a majority of leaseholders at Framewood Manor were prepared to approve the change. The question, in my judgment, was also whether a reasonable person with knowledge of the circumstances in which people acquired leasehold interests in this sort of development would say that it was not a substitute for a jacuzzi.

In my judgment, a reasonable person would reach this conclusion. A sauna and a jacuzzi do not serve the same function. A sauna uses steam to induce perspiration in an enclosed space. A jacuzzi, on the other hand, uses warm aerated water and is fitted with a whirlpool, and is usually situated near a swimming pool. A jacuzzi would be much more useful as a facility to enjoy safely with one’s young children or grandchildren than a sauna. Both would require adult supervision but a child would clearly have to be older to use a sauna for any length of time than he or she would have to be to use a jacuzzi. The development at Framewood Manor was after all for private residential use by individuals and families. It was reasonable to expect that a resident might wish to entertain young children.

Damages for loss of amenity followed, assessed at £1000 for the 2.5 years to trial and £2500 for future continued loss of amenity.

On the tree root claim, this had apparently been dealt with by removing the affected tarmac and reducing the tarmaced area. There was no merit to a claim for loss of amenity

On the gym equipment claim, there was evidence that gym equipment had been out repair for a years and that Mr & Mrs N used, or would have used, the facilities. Damages of £500 were appropriate as Mr & Mrs N were not in residence for the full year.

The full damages award, from first instance and appeal was therefore:

And the answer to the question of the difference between a jacuzzi and a sauna? About £325 per annum, pro rata. But only if you really, really want a jacuzzi.

If nothing else, the case serves as a reminder of the difficulty in pursuing and low awards in loss of amenity claims, at least if brought as the sole head of claim.

This, and please bear with me here, was an application for leave to appeal a Circuit Judge’s trial judgment. It was also an application for an injunction to restrain enforcement of the trial judgment, originally made in the High Court. It resulted from a possession claim and disrepair and personal injury counterclaim that had, at some stage, involved a claim for judicial review and an application for permission to appeal the refusal of permission for review. All this out of what should have been a fairly straightforward claim and counterclaim.

The actual appeal deals with non-attendance at trial, the status of expert’s reports that don’t conform with CPR PD 35.3 requirements and the attention to be paid to an absent party’s evidence at trial.

Williams had let a house to Hinton on an assured shorthold tenancy for 6 months in April 2005. In August 2007 W issued a claim for possession. H counterclaimed, alleging disrepair under s.11 Landlord and Tenant Act 1985, s.4 Defective Premises Act 1972 and consequential personal injury. As the claim went on, H left the property so that the possession claim dropped away and the case proceeded on the counterclaim alone.

It is fair to say it did not proceed smoothly. W, in person not represented, defended on the basis that H had abused the property and any personal injury was nothing to do with W’s responsibilities. There were numerous abortive hearings, and a directions hearing in April 2009 following W presenting a medical certificate for non-attendance. There was also, somewhat astonishingly, an application for judicial review of the proceedings of the claim by W, issued in September 2008. That was refused in October 2008 and a renewed application for permission went to the High Court. This was apparently refused, but didn’t stop W sending to the County Court what was claimed to be an order of stay of execution (although of what as there had been no trial yet is not clear). This wasn’t actually a stay of execution. As the trial Judge noted:

What in fact the Williamses appear to have done is that they have certainly filed a Notice of Appeal and a further reconsideration of their application for permission to judicially review the original proceedings. So far as I am aware, there has been no stay of execution granted by any superior court. The last correspondence I have seen from the Civil Appeals Office of the Court of Appeal, which is dated 26th May, indicates that the Williamses made an application on 19th May seeking permission to appeal the decision to refuse permission to claim for judicial review and a stay of execution and an extension of time, and a reminder that they were to supply their documents to the Civil Appeals Office by 9th June. There is not, so far as I have seen…..a stay of execution which has been granted

This was in the context of the trial judge deciding to go ahead with the trial that had been listed for 29 June 2009. W had been notified of the hearing, but failed to attend. The Judge decided to go ahead in their absence as it was without explanation, there were no outstanding applications or stay orders.

The judge referred to witness statements by the Ws and three witnesses. He considered the Hs’ witness evidence, verified on oath at the hearing, and the report of a ‘single joint expert’, a surveyor and medical evidence on the injury alleged. He found breach of the repairing duty under s.11 and further that the personal injury was consequential. Damages plus interest of £12,096.71 were awarded, and costs to the Hs.

It was enforcement of this damages and costs order that the Ws sought to stay. But this was secondary to the appeal.

The Ws grounds of appeal were:

The Judge erred in deciding to determine the Respondents’ Counterclaim in the Appellants’ absence. In doing so, the Judge acted in breach of natural justice and/or contrary to Art. 6.1 of the European Convention on Human Rights (“ECHR”) and/or made findings no reasonable Judge could have reached on the facts. (“Ground I”)

Having decided to hear the case in the Appellants’ absence, the Judge erred in failing to ensure that the Appellants’ evidence and case was fully considered, contrary, inter alia, to Art. 6.1 ECHR and Van de Hurk v The Netherlands (1994) 18 EHRR 481, at [59]. (“Ground II”)

The Judge erred in treating Mr. Evans as a single joint expert and/or in permitting Mr. Evans’ report (“the report”) to be admitted in evidence despite the fact that the report did not contain a declaration in the form prescribed by the CPR in 35PD.3 (“the PD”). (“Ground III”)

They sought an order under to CPR 52.10.2 (a) setting aside the order of the Judge, together with an order pursuant to CPR 52.10.2(c), directing a new hearing.

On ground I, the Ws (now represented) argued that the Judge was wrong to exercise the CPR 39.3(1) discretion to proceed in the Ws absence. The correspondence before the court and the Ws past conduct of the claim should have shown the Judge that the Ws would intend to attend. Mr W had been gravely ill and this was known to the Court.

On ground II, the only reference in the Judgment to the Ws’ evidence was perfunctory and did not suggest a proper consideration. Even if the Ws’ witness statements did not constitute ‘evidence’ for the purposes of CPR 32.5 it was incumbent on the Judge to give it a proper consideration. Article 6 was engaged – pace Van de Hurk:

The effect of Article 6(1) is, inter alia, to place the ‘tribunal’ under a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties, without prejudice to its assessment of whether they are relevant to its decision……

On ground III, Counsel for the Ws accepted during the hearing that the expert had indeed been appointed as an SJE by the Court. But the declaration was “not strictly in accordance with the prescribed and mandatory form, set out in the PD. The declaration contained in the report did not say that the report was his “true and complete professional opinion”. Accordingly, the Judge should have excluded Mr. Evans’ evidence; instead it had been central to his decision.”

The Court of Appeal held in Gross LJ’s sole judgment:

As a premliminary issue, the Ws had appealed, but had not made an application under CPR 39.3(3) to set aside the Judgment. CPR 39.3(3) reads

Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

The relationship between an appeal and an application under CPR 39.3(3) is not straightforward. It was recently considered in Bank of Scotland v Pereira [2011] EWCA Civ 241 where guidelines were set out.

Following that decision, the present case would appear to be a paradigm example where an application under CPR 39.3(3) should have been made.

The Ws argued that the appeal should still be considered and that it was not an abuse to have appealed rather than applying to set aside and the appeal had been made before Pereira. There were no ‘backdoor’ advantages to an appeal, if anything adducing further evidence would be easier via 39.3(3) and the Ws had been litigants in person.

The Hs argued that being a litigant in person was not a ‘get out’ clause and the Ws were experienced litigants. The Ws should not have appealed and had lost the opportunity to apply to set aside.

Held: This was a paradigm case for a 39.3(3) application. There were no special facts. Grounds I and II of the appeal fell naturally under 39.3 and while ground III didn’t, it was a very weak ground. However, given that the appeal had been made before Pereira had been decided, it would be considered on its merits, rather than procedurally ruled out. However:

i) It does not at all follow that in subsequent cases the decision (to entertain an appeal when the correct course was to apply by way of CPR 39.3) would be the same (as Lord Neuberger MR observed in Pereira, at [37], in the passage already cited). I take this opportunity of underlining the importance of Pereira in providing guidance for a litigant unhappy with a decision reached in his/her absence.

ii) I am firmly of the view that the mere fact that a litigant is a litigant in person (“LIP”) would not, at least ordinarily, constitute an “unusual fact” (within Lord Neuberger MR’s observations in Pereira at [37]), warranting this Court entertaining an appeal when the correct course was to proceed by way of CPR 39.3. It is one thing to make even generous allowances, as the Court invariably does, for LIPs; but there should not be one rule for LIPs and a different rule for those legally represented.

iii) There is nothing in the materials before this Court to support the submission that greater familiarity with the Welsh language, rather than English, gave rise to any difficulty in the present case; as Mr. Moffat in effect submitted, the Appellants betrayed ample familiarity with English in their various dealings with the court system. I should add that I am far from saying that a want of familiarity with English would or should, at least ordinarily, constitute an “unusual fact” for present purposes; the scope for abuse would be manifest not to mention the extra costs that would be entailed.

On Ground I of the appeal: The Ws had been informed by a letter from the the Judge 3 weeks before the trial date that what they had said was a stay notice was simply a notice of application and of no effect. Although the Ws had subsequently again written to the court about the claimed stay pending appeal, they had been sent clarification that it was no such thing. The Judge had done everything he could to inform the Ws that the hearing was going ahead and the Ws demial of having received the Judge’s letter was not plausible. The Judge was entitled to exercise his discretion to continue in the absence of the Ws. That the Court hadn’t answered the Ws’ letter sent after the Judges’ letter to them was neither here not there. The position was clear.

It was also an issue of policy, that the Court should be able to exercise case management powers robustly to bring a case to its conclusion. “neither the requirements of natural justice at common law nor Art. 6.1, ECHR, precluded [the Judge] from doing so. Were it otherwise, a recalcitrant litigant could stymie proceedings”. Ground I dismissed.

On Ground II: The Ws’ statements did not constitute evidence under CPR 32.5 as witnesses were not present and no hearsay notices had been served. The Judge was only obliged to consider evidence, but had in any event had considered the Ws’ statements and those of their witnesses, doing more than he was obliged to do.

There was no requirement on the Judge to set out in detail his view of the evidence of a party who had not attended, but he clearly had paid it attention.

Nothing in Article 6.1 suggests otherwise. The Judge had paid more than adequate regard to the “submissions, arguments and evidence adduced by the parties”. Ground II dismissed

On Ground III: while the expert had not used the precise phrasing in CPR PD 35, neglecting to say that the report was his “true and complete professional opinion”, there was a substantial declaration that he understood his duty to the Court and of his independence. While strict compliance with the PD was important, the expert’s declaration “substantially complied with the essence of the PD, even if he did not follow the precise wording”. The Judge was therefore not wrong to give weight to his report. Ground III and the appeal dismissed.

As thr appeal fell, so likewise the claim for an injunction preventing enforcement.

We missed this one when it came out in July 2011. Not sure why – sorry. This was an appeal of a claim in nuisance, trespass, harassment and personal injury. The claim arose out of building works on an adjoining property. The appeal is worth looking at on issues of quantification of damages for trespass and the foreseeability of personal injury.

Jones and Lovegrove owned a 3 storey terrace at 105 Lower Thrift Street. Mr & Mrs Ruth owned 103 and 101 Lower Thrift Street, both originally two storey terraces. Between 2002 and 2007, the Rs gutted and rebuilt 103 into a 3 storey house with an enlarged kitchen and new garage. Between 2007 and 2010, the Rs did the same thing to 101.

In February 2008, Ms Jones and Ms Lovegrove brought a claim in nuisance, trespass, harassment and personal injury. ON nuisance and trespass, they claimed that:

during the works to 103 they suffered from excessive and persistent noise and vibration which affected 105; that the vibration caused cracking in the walls of 105 which continued until about March 2006; that the defendants had trespassed by making holes in the gable end wall of 105 and by the insertion of purlins and had also damaged the roof; that there had been trespass on to their garden by the erection of scaffolding and the storage of building materials, particularly during the re-building of the garage at 103; that the boundary wall had been damaged and in part demolished during the works; and that there had been numerous other incidents of rubbish being thrown into their garden and of other anti-social behaviour.

On harassment and personal injury:

The claim for personal injury was made by the first claimant, Ms Jones, who it was alleged witnessed the damage to 105 and, as a consequence, suffered from severe back pain brought on by the anxiety and depression which this caused. She has not been able to work since April 2005 and requires some form of cognitive behaviour therapy as well as physiotherapy and counselling to assist her recovery. These symptoms were also, she alleged, the result of what amounted to a campaign of harassment against her and Ms Lovegrove by the defendants who acted in an aggressive and intimidatory manner towards them; refused to provide any information about the progress of their building works; and repeatedly ignored their requests to reduce the noise and to make good the damage which their works had caused.

There was also an incident when either the Rs or their children dropped notes from an upstairs window which contained various offensive and threatening remarks about lesbians.

The Defendants made no offer to settle and the matter went to trial.

HH Judge Wilcox found that the gable wall in question was a party wall so raising the roof and inserting ties was an act of trespass. The new garden wall had been built on the land of 105 and must be demolished and rebuilt on 103′s land. But he declined to grant an injunction for the removal of the new upper floor of 103.

Damages for nuisance – for protracted and substantial disruption, noise, loss of privacy over 4 years where the works should reasonably have taken no more than 1 year – £30,000 for loss of amenity and enjoyment.

Damages for trespass were said to based on “the value to the Defendants of the unabated nuisance constituted by the stealing of support for their raised roof and attached 3rd storey. The value to their house is irreversibly enhanced.” Assessed at £45,000

On the harassment, the Judge found a campaign of harassment from 2003, with particular attention to the notes. £6,000 awarded.

No award was made on Ms J’s claim for personal injury. The Judge considered this in the context of the nuisance and trespass claims and found that it was not made out that the psychiatric injury stemmed from witnessing the damage to the Claimants’ property. It did not start until a year later after Mr R failed to adhere to an agreement reached in mediation. Further, in a discussion at the time of giving judgment, the Judge had stated that the personal injury could not be found to flow from the harassment (although he had stated that it followed Mr R’s conduct) and further that:

reasonable foreseeability of the injury is a test in harassment as it is in negligence. Mr Noble [for Ms J] submits to me that is the wrong claim. He persuades me that it is arguable and since it is arguable in the light of this case and what rests upon it, it is right that I should give leave to appeal on that aspect of the matter only. That is, whether reasonable foreseeability of the injury would be necessary.

If damages for personal injury were to be awarded, they were agreed at £28,750. Loss of earnings were assessed by the Judge at £115,000 over 5 years, but no award was made.

Costs awarded to the Claimants at the indemnity rate, in view of the R’s conduct, although the damages awarded were substantially less than the amount set out in the claim.

Ms J and Ms L appealed on the personal injury point. They argued that the Court was wrong not to find that the personal injury followed from the harassment, and wrong to say that the test for personal injury under s.3 Protection From Harassment Act 1997 included reasonable foreseeability. They also sought interest on damages.

Mr & Mrs R cross-appealed on the award of damages for trespass, arguing that a claim based on enhancement of value to 103 was not part of the claim and unsupported by evidence, and on the costs award on the basis that the damages awarded were so substantially less than those claimed that the R’s were substantially successful at trial.

In the sole Judgment of Patten LJ, the Court of Appeal upheld Ms J and Ms L’s appeal.

Section 3 of the 1997 Act provides:
“(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.”

There were no previous decisions on whether foreseeability of injury was necessary. Majrowski v. Guy’s and St. Thomas’ NHS Trust [2006] UKHL 34 referred to ‘ordinary principles of causation and mitigation’ applying to such a claim, but did not refer to foreseeability. An obiter comment in Laing Limited v Yassin Essa [2004] EWCA Civ 2 on the other hand suggested it was not a test under the 1997 Act.

The appelants argued that:

tortious conduct of this kind falls into the group of torts (such as assault) which in most cases involve the intentional infliction of harm and in respect of which issues of foreseeability are irrelevant. The tort of harassment is purely statutory and s.3 of the 1997 Act specifies no conditions for the recovery of damages beyond the requirement that the harassment should have caused the injury or loss complained of.

This was accepted as right. The first instance Court was therefore wrong to exclude the claim for personal injury and damages should be awarded at the agreed £28,750. The loss of earnings claim awarded in the sum assessed by the first instance court of £115,000. Any remaining elements of the claim (medical expenses, future loss of earnings) to be remitted to the High Court for further hearing if Ms J wished to pursue them. Interest awarded on the personal injury claim from date of issue and from 2005 at half the prevailing special rate on the loss of earnings. The damages otherwise awarded at first instance did not bear interest as they were awarded on the basis of the conditions at the time of trial.

On the cross-appeal on the award of damages for trespass, the claim was for an injunction to remove the new floor. The court had

“jurisdiction under s.50 of the Senior Courts Act 1981 to award damages in lieu of an injunction and can do so on a basis which compensates the claimant for the loss of his property rights by awarding him damages in a sum equal to the amount which he could reasonably have demanded for a licence.”

Jaggard v Sawyer [1995] 1 WLR 269. A similar approach could be taken in common law nuisance, Whitwham v Westminster Brymbo Coal & Coke Co [1896] 2 Ch 538. The basis for the assessment of damages was what the Defendant would have paid for being able to carry out the works.

There was no evidence of the increased value before the first instance court. It appeared that the Judge may have underestimated the increased value, as the 103 was bought for £60,000 and the current value was now agreed at £154,000. The Judge was reasonable in assuming an increase in value of some £90,000, although not all was attributable to the extra storey. The Judge had taken that as £45,000.

But where the Judge at first instance erred was in basing the damages solely on the increase in value. This was just the starting point for a calculation on the wayleave basis.

The issue for the Court is to determine what the parties, acting reasonably, are likely to have agreed as payment for the necessary licence. As part of that hypothesis one has to assume that the parties would have acted as willing grantors and willing grantees. Consistently with this, the defendants would not have either withdrawn from the negotiations or been willing to give up the entirety of any value attributable to the planned works. Similarly the claimants would not have refused permission except upon payment of the lion’s share of any increase in the value of 103.

In the current case, the cost of a licence would be unlikely to be more that a third of the prospective increase in value, so an award of £15,000 should be made in place of the £45,000. That part of the cross-appeal allowed.

On costs, while the Defendants were successful in defeating significant parts of the claim, the costs award had been made on the basis of the belligerence and non-cooperation of Mr R. The matter had gone to a 8 day trial in which every piece of evidence was challenged and tested. The bulk of the 8 days were taken up by the nuisance, trespass and harassment claims. What should have been a straightforward claim heard in the County Court ended in the High Court for 8 days because of the Defendants’ approach. The Judge below had not made an error in the exercise of his discretion in awarding costs, Islam v Ali [2003] EWCA Civ 612, and had taken into account the Defendants’ points. Further, the Defendants had failed to take any steps to protect their position on costs against an exaggerated claim by making a Part 36 offer. The cross appeal on costs dismissed.

It is potentially useful to have confirmation on the foreseeability of injury resulting from harassment point. Also useful is having the approach to assessment of damages for trespass where an increase in value to property has resulted confirmed.

First – developments in the Legal Aid, Sentencing and Punishment of Offenders Bill.

At the committee stage a large number of amendments were tabled, both by the Government and by the opposition. The opposition amendments would have introduced a revised definition of domestic violence, in line with Yemshaw, and brought benefits and debt advice back within scope.

All the opposition amendments fell. The Government amendments make three changes, described by the MoJ as follows:

The first change disapplies the exclusions for trespass to land, trespass to the person, trespass to goods, damage to property and breach of a statutory duty for counterclaims in possession proceedings under paragraph 27 of Schedule 1.

The second change disapplies the exclusions for trespass to land, trespass to the person, trespass to goods, damage to property and breach of a statutory duty for unlawful eviction claims under paragraph 27 of Schedule 1. This provides additional heads of claim and also provides heads of claim that non-tenant lawful occupiers can use.

The third change is to disapply the exclusion for breach of a statutory duty from paragraph 29 of Schedule 1 (housing disrepair) so that funding can cover claims based on, for example, the Defective Premises Act 1972.

However, as the Legal Action Group blog points out, it does not appear that a claim for damages only for unlawful eviction/trespass to land/damage to property would be funded. This is not at all clear, but the parallel with the position on disrepair set out below would suggest this may be the case.

It also does not appear that a counterclaim for disrepair in a possession claim has been brought within scope – or at least the status of such a claim is unclear.

The position on disrepair remains unchanged. The MoJ’s current view on legal aid funding for disrepair claims is that funding will only be available for a claim for works. A damages component to the claim would be covered by the funding under the mixed cases rule, but only so long as the claim for works is extant.

If the landlord carries out the works required such that an existing claim becomes damages only, public funding will, in principle, cease to be available. There may be discretion under the Funding Code to continue funding where it is in the interests of the fund to do so (meaning costs recovery). The MoJ expects the client to recover costs on the works element of the claim even where not able to do so on the unresolved damages claim, because where the landlord has done the works, there should be no issue about liability (!!!).

If the claim for damages proceeds on a CFA, the statutory charge would apply if damages were recovered. The MoJ expects most cases to continue under a CFA.

Although the small concessions on trespass to land/person/goods are a step in the right direction, the position – particularly on counterclaims to possession, is far from clear and very far from satisfactory. The position on disrepair is so detached from practice as to be on another planet, with the laughable suggestion that carrying out works constitutes an effective admission of liability. But while on the one hand the MoJ is saying that disrepair damages claims are outside scope, a claim under the Defective premises Act is now in scope – as breach of statutory duty – and that surely is in part a claim for damages.

This stage of the bill looks like a seriously missed opportunity, overall.

And then there was the curious case of Nearly Legal’s appearance in the letters page of the London Evening Standard. On 6 September, the Standard ran a ‘squatting horror’ story in which a couple had bought a house but before they could move in, found it squatted by some 15 people. According to the story, the police had refused to help, saying there was no sign of a break in and it was a civil matter. Again according to the story, the couple had had to bring possession proceedings and it had taken a couple of weeks, but they were hoping to get an order the next day.

On the evening of  6 September, I was contacted by the letters editor of the Standard, asking to be put in contact with Francis Davey about that article (presumably because of Francis’ post here), so I passed it on.

On 7 September, on the letters page of the Standard, Francis’ comment duly appeared, politely pointing out that it looked like the couple were probably protected intended occupiers and that there was no need to go the possession order route or wait for weeks. Oh and that the police weren’t exactly right. It is, as one would expect from Francis, a thoroughly accurate account of the law as it stands. It also, politely, made the point that the problem appeared to be rather more a lack of information or understanding of the law all round (including the police), than a failing of the current law. Good on Francis (and an interesting insight into how the Standard letters page operates).

Meanwhile, on the front page of the same issue of the Standard was a further instalment of the ‘Squatting Horror’ story, with the Housing Minister Grant Shapps being quoted as saying that the story showed why the DCLG plans to criminalise squatting in a building needed to be speeded up.

Grant Shapps’ rationale for misrepresenting the existing law is clear. He has a particular agenda in pushing for the criminalisation of trespass to buildings and will happily embrace any story that might garner support, no matter how inaccurate.

But the misrepresentation of squatting and the law of trespass by newspapers has been widespread and something we have visited before – both Francis’ post and this one of mine. The Standard, The Mail and the Telegraph (Daily and Sunday) have been particular offenders, but far from alone.  Now that the consultation on the DCLG proposals to criminalise trespass is underway, the continued failure to adequately present the actual law (and continuing to present the DCLG proposals as being for the protection of homeowners), is a serious issue, distorting public understanding and increasing the kind of confusion that Francis raised in his letter.

By co-incidence, and from another (thoroughly respectable) source entirely, the idea was raised with me of an open joint letter by housing lawyers, stating the current law and making clear that much recent coverage of the issue has been inaccurate.

What do people think? I am under no illusions that such a letter would necessarily make a huge difference, where at least some of the coverage is clearly politically motivated, but it is also apparent that there is a large degree of confusion and misunderstanding that could be addressed. Can anyone who might be interested let me know – via contact(at)nearlylegal.co.uk or the form here - and the merits are open to discussion in the comments.

At the risk of being mocked, or shunned, I must confess myself to be throughly excited. A Court of Appeal disrepair case! And on one of the great unknowns of disrepair liability to boot! Obviously, my wedding day 8 years ago counts as being more exciting, but that excepted… This is rarer than hen’s teeth, rarer even than a meaningful engagement with a consultation by the ConDems, so even if you don’t do disrepair cases, enjoy the scarcity value.

This was an appeal by the Claimant, the tenant Ms Grand, against the trial judgment awarding her £5,600 general damages for disrepair and breach of quiet enjoyment against the landlord, Mr Gill.

Ms Grand was the assured short hold tenant of the property, a second (top) floor flat in Hillingdon. It was a 2 bed and she lived there with her daughter. A 12 month AST began in November 2004 and from November 2005 the tenancy continued as a statutory periodic. The rent was £850 per month, with £715 per month HB (although nothing turns on that at all).

The tenancy agreement provided for nothing more than s.11 Landlord & Tenant Act 1985 repairing obligations.

The main issue with the flat was damp and mould, throughout the flat. It became so bad in the second bedroom that the daughter had to move into the living room.

There was water ingress, causally connected with the damp and mould, through the ceiling from a leaking roof above the flat and from defective guttering. However, Mr Gill was the lessee of the flat, the roog was outside the demise and the responsibility for the repair of the roof and gutter was found to lie with the head landlord.

In addition, the boiler was defective. It did not work at all for 207 days between Nov 2004 and Nov 2007, when it was finally replaced. The rest of the time, it provided a wholly inadequate level of heat, some 15C, in the flat.

The expert had also found defective plaster in two areas, to the external wall of the living room and the kitchen ceiling, both caused by the water penetration.

A double glazed window had lost one layer of glass and this had not been repaired.

Ms Grand brought a claim for disrepair in November 2006. At trial in May 2009, the Judge awarded £350 damages for breach of quiet enjoyment (a claim under the Protection from Harassment Act failed). On the disrepair, the judge held that liability for the roof and guttering did not fall on Mr Gill. He found that the damp and mould was principally an issue of condensation, which was a consequence of a design fault and for which Mr Gill was not liable under Quick v Taff Ely BC [1986] QB 809.

However, he also held that the lack of proper (or any) heating for the 3 years 2004 to 2007 had contributed to the damp and mould by increasing the incidence of cold surfaces leading to condensation. He also held that the missing pane to the double glazed window had made a “small” contribution for about a year.

Disrepair damages were assessed “following the approach” in Wallace v Manchester CC [1998] 3 EGLR 38, as follows:
£1200 pa for the 3 years of lack of adequate heating due to the boiler. (Apparently based on an award of £1100 pa in Islington v Spence July 2001 Legal Action 26 for inadequate heating. No Increase for inflation made at all.). £700 was deducted from this in respect of the 30 weeks covered by a separate award of £1750 for the period with no heating at all. So £2900 for defective heating for 2 years 22 weeks, and £1750 for no heating at all for 30 weeks.
“Full liability” for the damp and mould would have resulted in £2000 pa, but assessed on an exacerbation by the lack of heating and window of 10%, £600 awarded for the 3 years of the claim.

There was no award of interest, although the Particulars of Claim claimed interest.

Although the Circuit Judge noted the expert report required the replacement of an area of defective plaster in the living room, the judgment was silent on liability or damages for defective plaster.

We should note that Ms Grand was not represented at trial, while Mr Gill was represented by Counsel.

Ms Grand appealed. Initially, the grounds of appeal included the Judge’s failure to address her special damages claim of £343, but this was not pursued,

The grounds of appeal were:
i) the judge was wrong to award only 10% in respect if the damage caused by the damp, in that the application of Quick v Taff Ely was wrong, specifically in relation to defective plasterwork.
ii) the judge was wrong not to award interest on the general damages claim.

On i), Ms Grand, via Counsel Mr de Waal, acting pro Bono, argued that the expert report identified two areas of defective plasterwork requiring replacement, in the living room and the kitchen. Although these had been caused by the roof leaks, for which Mr Gill was not liable, the defective plaster was a lack of repair under s.11 L&T Act 1985 for which he was. The discount of 90% ignored Mr Gill’s 100% of liability for the defective plaster and its consequences.

However, this would require plaster to form part of the ‘structure’ under s.11 LTA. As any housing lawyer well knows, this has been a vexed topic. In Quick v Taff Ely, the defendant conceded plaster was part of the structure, so there was no argument on the point. Staves & Staves v Leeds CC (1991) 23 HLR 107 (Court of Appeal) also involved a similar concession. In Niazi Services Ltd v van der Loo [2004] 1 WLR 1254, the Court of Appeal was posed the question but declined to answer it.

There was, however, a decision on the point in Irvine v Moran (1992) 24 HLR 1 by Mr Recorder Thayne Forbes QC. he held that structure should be limited to ‘those essential elements of the dwelling house which are material to its overall construction ‘. Internal wall plaster was ‘in the nature of a decorative finish’ so not structural. The definition of ‘structure’ in Irvine v Moran was approved in Marlborough Park Services Lyd v Rowe [2006] EWCA Civ 436, but not the point on plaster.

Ms Grand argued that Irvine was wrong in principle. While plaster did not give the dwelling stability, it did contribute to its appearance and shape. The distinction was properly between decorations and fittings on the one hand and everything else making up the dwelling on the other.

The Court of Appeal was reluctant to decide the point but could not avoid it “as the Court of Appeal has been able to on previous occasions” (Lloyd LJ at 32). In Rimer LJ’s lead judgment, with which the others agreed:

For myself, whilst I would accept and adopt Mr Recorder Thayne Forbes’s observations as to the meaning of ‘the structure … of the dwellinghouse’ as providing for present purposes, as Neuberger LJ put it, a good working definition, I am respectfully unconvinced by his holding that the plaster finish to an internal wall or ceiling is to be regarded as in the nature of a decorative finish rather than as forming part of the ‘structure’. In the days when lath and plaster ceiling and internal partition walls were more common than now, the plaster was, I should have thought, an essential part of the creation and shaping of the ceiling or partition wall, which serve to give a dwellinghouse its essential appearance and shape. I would also regard plasterwork generally, including that applied to external walls, as being ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration can then be applied, rather than a decorative finish in itself. I would therefore hold that it is part of the ‘structure’. I would accordingly accept that the wall and ceiling plaster in Ms Grand’s flat formed part of the ‘structure’ of the flat for the repair of which Mr Gill was responsible. [para 25]

It followed that Mr Gill was liable for the defective plasterwork and the Judge should have addressed this in damages. While Ms Grand’s submissions that the whole of the 90% discount should be overturned were not accepted, full compensation for the two areas of defective plaster were ‘with a broad brush’ assessed at being £750 of the Judge’s notional £6000. Thus the 90% discount applied to the remaining £5250. In place of the £600 awarded by the Judge, £1275 was awarded, increasing overall damages from £5600 to £6275.

On ii) – the interest, the Judge should have made an award, as it was claimed. However the date from which interest would run was not the date of claim as contended for by Ms Grand, as damages continued to run from the date of claim for a further year in respect of the unrepaired boiler. It was not just to require Mr Gill to pay interest on damages relating to subsequent loss. Interest would run from November 2007 at the proposed rate of 2% to the trail judgment of 7 May 2009.

Appeal allowed and the final order varied in these terms.

Before I comment further, we should note the role of John de Waal of Hardwicke Chambers. Ms Grand clearly did well as a litigant in person at first instance, but Mr de Waal has brought a (right) decision on plaster out of the Court of Appeal where generations of housing lawyers have been unable to do so.

In addition, Mr de Waal quite properly asked for and was awarded pro Bono costs – assessed at £2500 – in favour of a charity, The Access to Justice Foundation. Good work.

Comment
This is excellent news, ending years of wrangling and poring over tenancy agreements for a clause incorporating an obligation to repair plasterwork.

The decision on interest is also a useful confirmation of that entitlement and one worth everyday utilisation.

But beyond the headline, undoubtedly welcome though it is, I wonder about the first instance decision in this case, in particular the main body of damages – the £4650 in respect of 3 years of defective or non existent heating. This was not at issue in the appeal, I should be clear.

The disrepair damages, as revised by the Court of Appeal, amounted to 19.4% (let’s say 20%) of rent for the 3 year period.

The main body of damages was apparently assessed by the Judge below on the basis of Wallace v Manchester (the “unofficial tariff” currently at £1438.04 to £3954.60 adjusted for inflation to April 2011) and the Spence case from 2001 (with no adjustment for inflation against that award). The trouble is that Wallace was in relation to a social/local authority tenancy and even those social rents have increased above the level of inflation.

To illustrate the problem in applying Wallace to private sector tenancies, the very top of the ‘unofficial tariff’ is about 38% of Ms Grand’s rent of £10,200 pa. The top of the Wallace scale would be in regard to an effectively uninhabitable property. Damages of 38% of rent in relation to an uninhabitable property are clearly inadequate.

I’d suggest that the Circuit Judge was wrong to take Wallace as a guideline, and that the approach in English Churches Housing Group v Shine [2004] EWCA Civ 434 would be preferable, that approach being a percentage award as a notional deduction from actual rent. The same approach was used in Niazi Services Ltd v van der Loo mentioned above. This approach makes sense both for private tenancies, but given current social rent levels, for social tenancies too. Wallace is, after all, an unofficial tariff. No such measure of damages was decided by the Court.

The Upper Tribunal (Lands Chamber) has recently ruled on the proper use of improvement notices under the HHSRS. When I say recent I should actually say a little while ago. You can blame the recent spate of good weather and a short spell of leave for the slightly reduced speed of posting on this.

Anyway, dragging my gaze back from sunny blue skies to the hard grey world of statistics, the situation concerns the use and scoring of the excess cold hazard. In this case Bristol CC had inspected a property which was heated entirely by convector heaters. Most EHOs have a strong dislike of these heating systems and a powerful preference for gas central heating which they see as more energy efficient, environmentally friendly, effective and controllable. There is good cause for this belief in many cases but it is not a universal truth.

Here the EHO considered that the convector heating was wholly inadequate for the task and revised the likelihood of an incident under the excess cold profile upwards from the national average of 1 in 340 to 1 in 180. This generated a score in excess of 3000. She then issued an improvement notice based on the high score thus obtained requiring the fitting of a gas central heating system or electric night storage heating. After, the fitting of loft insulation there was a reinspection at which the score was lowered to 1819. Both scores disclosed category 1 hazards requiring the Council to take action.

The landlord, the interestingly-named Aldford Two LLP, appealed to the RPT. The RPT inspected the property and heard evidence from both sides. It made an order that the scoring should stand but that the Council should not enforce the improvement notice issued. The Council appealed on the basis that the RPT could not require it not to act where a category 1 hazard existed. It also complained that the RPTs reasoning was incorrect and that the RPT had substituted its own decisions, based on their inspection for that of the Council. In particular the Council complained of three items that the ROT had advanced as being the reasons for preferring its own views:

1. The fact that the tenants appeared happy with the system;
2. The perception by the RPT members on inspection that the property was warm inside while it was cold outside;
3. The belief by the Tribunal members that, based on their own experience, electric heaters were adequate for a property of this type.

The LC started with a consideration of the underlying HHSRS system and the inspection by the Council. It noted, with some surprise, that the EHO had produced a score which meant that there was a 1 in 570 chance of a death occurring from cold in the property in the next 12 months which it clearly found to be unlikely.

Before the RPT the landlord had contested the finding by the EHO that the heating system was ‘seriously defective’. It had produced a heat loss calculation which showed that the heating system was adequate for the property and this had been accepted by the EHO in her witness statement. The EHO had however continued to state that the heating was below the norm for this type of property and, based on an EPC she had produced, cost an excessive amount to heat the property as compared to the alternatives the Council was seeking. The landlord contended that the cost of heating the property was not a relevant consideration for the purposes of the HHSRS and that the figures produced by the Council were, in any event, incorrect.

The LC heard submissions on the above issues and also invited further written submissions on whether it should (or could) quash the improvement notice and substitute a hazard awareness notice. The submissions on this issue were diametrically opposed with the two sides taking the positions one would expect.

The LC began its conclusions by finding that the reasons the RPT had given for quashing the improvement notice were inadequate. Given that the RPT appeared to accept a category 1 hazard existed it could not simply quash the enforcement notice without substituting an alternative means of enforcement. This was held by the Council to be all that was necessary as granting their appeal would restore the original improvement notice. The LC did not agree with that and ruled that there were two matters for it to consider:

1. Whether the RPT were right to accept that a category 1 hazard existed; and
2. Whether the improvement notice was the most appropriate form of enforcement action and whether a hazard awareness notice would not have been more appropriate.

Before answering these questions the LC first considered the three arguments advanced by the Council for setting aside the decision of the RPT based on the three reasons given above. The LC, while accepting that the RPT decision did not give sufficient reasons, was not prepared to hold that the three issue the Council complained of were correct. It was perfectly in order for the RPT to take into account the expressed views of the occupants who were, after all, in the best position to know if the property was adequately heated or not. While the RPT could not use this as the sole point of determination it was certainly one of the areas they could take into account. Equally, it was open to the RPT to consider whether a property was warm or cold during their inspection. This is something that an EHO would form a view on and the RPT had no less a right to form such a view. The final, and most contentious area was the application of the knowledge and experience of the tribunal. Tribunal members have been cautioned many times against applying their own knowledge and experience in a manner which outweighs the evidence presented to them. Decisions must be based on the presented evidence and not on evidence gathered or created by the tribunal itself. However, the RPT had not done that here. The Council had presented evidence that the heating system was inadequate and the landlord had presented evidence that it was. The Tribunal was perfectly entitled to prefer the landlord’s evidence and was entitled to use it’s experience and knowledge to justify that preference.

Having disposed of the Council’s criticisms of the reasons given in the RPT decision the LC returned to the two main questions it had set itself. It criticised the RPT for not considering whether the Council had correctly scored the property. While not going so far as to score the property itself the LC made clear that it considered the scoring to be excessive and expressed doubt as to the 1 in 500 chance of death figure. It held that the RPT would probably have reduced the score had it turned it’s mind to this question and based on that the installation of a new heating system was an unreasonable demand. Accordingly, the LC held that the improvement notice should be quashed and that a hazard awareness notice should be substituted for it.

Comment
This is the second occasion on which the LC has commented on the relatively uncertain quality of the statistics which underlie the HHSRS. It has also again brought to the fore the problems that many EHOs (and to be fair most of the population) have with statistics. In this case the EHO had made a huge adjustment to the likelihood of an incident under the cold hazard occurring. Due to the high chance of a serious outcome under that profile this had created the unlikely scenario that the property had a 1 in 570 chance of causing death (or an equivalent extreme harm) in the next 12 months due to cold. This is a statistical likelihood that, if accurate, would be (you will have to excuse the pun) chilling. If an event becomes more likely then it is not normally true to say that the outcome of that event becomes more serious. However, it is common for EHOs to increase both the likelihood of an event and also to shift the percentage outcomes of an accident towards the most serious outcomes simultaneously or at least to leave them unchanged. It is also common for changes to be made in national averages which are very large with little consideration as to how those averages were determined in the first place and where the property falls in the spectrum of properties nationally. It is this mindset, which probably has more basis in feeling that actuality, which produces the very badly skewed scoring found in this case.
I have been a, admittedly somewhat outspoken, critic of the tendency of many EHOs to enter a property and “see” what needs doing and then batter the HHSRS scores into making it fit their preconception. While this is entirely natural and is a partly an effect of having too little time it goes against everything the HHSRS was designed to do. EHOs really need to think carefully about the statistical underpinning of the HHSRS and what they are doing when they adjust the numbers the system is based on. Changes in likelihood and outcome are often made too readily and are too big to be sustainable under close scrutiny. EHOs must try to put aside their notions and accurately process the statistics first to produce an accurate score which will stand up to scrutiny and then consider their enforcement options rather than starting from the other end.
Before anyone lambasts me I should state clearly that I am a great supporter of EHOs and the HHSRS in general and agree that a substantial number of properties in the Private Rental Sector are below the necessary standard (often far below). However, not using the HHSRS system properly and accurately is ultimately counter-productive and is a serious waste of local authority time and resources.

Which brings us nicely to (1) Jenson (2) Jenson v Faux [2011] EWCA Civ 423 and a quite fantastically important case on the Defective Premises Act 1972 and how to avoid adventure and excitement.

By s.1(1), 1972 Act, a person who does work “for or in connection with the provision of a dwelling” owes a duty to ensure that the work is done in a workmanlike or professional manner. That duty is owed both to the original contractor and any subsequent purchaser of the dwelling.

In this case, we’re dealing with a property in Battersea. I imagine it’s quite a nice property, as well. The claimants were the current owners, having purchased in 2007. Back in 2003, their predecessor in title had engaged the defendant to do various works to the property. The most important of these (for present purposes) was works to the basement. The old coal cellar was extended and turned into a veritable funfest of a cinema room, gym, washroom, etc. Unfortunately, something wasn’t right and the basement suffered from water penetration.

The claimants sued the defendant under s.1, 1972 Act. The defendant went for summary judgment. His argument, based on an unreported (and apparently largely unknown) case of Saigol v Cranley Mansions CA, July6, 1985, was that the works were not in connection with the “provision” of a dwelling and that the mere enlargement of an existing dwelling did not fall within the scope of s.1, 1972 Act.

The High Court Judge dismissed the application, and the defendant sucessfully appealed. Notwithstanding that no-one (not even the editors of Clerk & Lindsell) had ever heard of Saigol, it was agreed to be binding on the court. It could not be said that the works were such as to create a new dwelling or to change the character of the property. It went from being a house to being a slightly larger house. It followed that summary judgment should be entered.

The answer, as the Court of Appeal indicate at the end of the judgment, is for purchasers to remember the rule of Caveat Emptor and get a survey done before they purchase. Yoda would clearly agree. It takes all the excitement and adventure out of house buying.

(although, remarkably, the claimants in this case apparently had got a survey. And still bought the property. Perhaps they were under the influence of the dark side?)

Ok, so that’s not the greatest joke in the world (and, as my wife points out, I’ve never been to B&Q), but it serves as an entirely suitable introduction to the Tenant Cashback scheme, announced by Grant Shapps MP this week. The official announcement is here and the Inside Housing piece is here.

The government takes the view that some of the maintenance works done by social landlords to their housing stock could – and should – properly be done by tenants. So, what it proposes to do is to give tenants a chance to manage the repairs budget for their own homes (although, I must say, I’ve never seen a per home repair budget, rather, the landlord usually sets aside a pan stock sum). It looks like jobs (e.g. external painting) will be given a notional value and, if the tenant can get it done for less than that, they keep the difference, thus encouraging people to do the work themselves or commission it locally from cheaper suppliers.

Leaving aside the obvious concerns about about potential liability for poor quality DIY work (see, e.g. Defective Premises Act 1972), and the potential for dubious redecoration schemes (such as this) and the inevitable clash between planned cyclical maintenance works and individual demands of individual properties… this is an excellent idea that should be welcomed by all litigation lawyers.

The Government’s response to the consultation on reforms to civil litigation and costs (the Jackson reforms) has now been released.

The full response can be downloaded here [pdf] and the associated impact assessment is here [pdf]

The press release is here.

In short, the Government intends to go ahead with its original proposals. Expect legislation soonish.

From the perspective of housing practitioners, some things are not at all clear. Others are.

While a 10% uplift in general damages is envisaged, in part to replace the success fees payable by the Defendant, this is referred to at some points as being solely damages in tort (personal injury), which would not apply to disrepair, which is contractual. However, at other times, the reference is to general damages or non-monetary losses per se. Whether the 10% uplift in damages will apply to disrepair will have to be clarified in the forthcoming legislation.

However, disrepair CFA success fees will not be recoverable from the Defendant. Given the level of disrepair damages, this makes success fees difficult in such cases, even though, unlike personal injury, the success fees are only capped to 100% of costs. The same issues apply to the proposals to make contingency fee agreements lawful.

ATE insurance premiums will not be recoverable from the Defendant. There was an emerging market in disrepair ATE insurance, but that protection for the claimant client will not be available under the proposals, unless paid for by the client.

Further, qualified one way costs shifting, where the Claimant is largely not liable for Defendant’s costs is not initially to be introduced except for PI/Clinical negligence matters, so not to be brought in for disrepair cases or indeed judicial review, at least at first. There will still be Claimant liability for the Defendant’s costs on a failed or lost claim.

There is a change to Part 36 rules proposed, making Defendants liable for a further 10% of the value of a claim in damages if they failed to accept a reasonable offer by the Claimant, even if the Claimant did not beat that offer at trial. There may be a further or different sanction for non-monetary claims. This will change calculations on both sides on Part 36 offers, but would seem to favour the Claimant, making it harder for the Defendant to undercut a reasonable offer.

In view of the Government’s intention to take many disrepair claims out of legal aid scope, these proposals make the situation complicated. The proposals seem to me to completely ignore the particular circumstances of housing matters, where the subject matter of claims is generally an injunction for works, not purely damages (general or special). The basis for the calculations and balancing, such as it is, are wholly predicated on damages only claims.

And then, just when we’d worked our way through that, yet a new consultation arrives. Yes, reform of County Court litigation. Closing date 30 June 2011. Highlights among the proposals – raising the small claims limit from £5,000 to £15,000; compulsory mediation for small claims; and compulsory ‘mediation awareness’ for higher value claims.  It has been a long day, and it isn’t often this happens, but words fail me…