Not a housing post per se, but this case concerns Part 36 offers which are a vital tool in any disrepair or nuisance claim or counterclaim, so worth a brief note for practitioners.

Gibbon v Manchester City Council [2010] EWCA Civ 726

Two joined appeals on the issue of the construction of CPR Part 36:

In Gibbon, Machester had made an offer of £1,150 in settlement. G rejected that and offered £2,500. Manchester thereafter offered £1,500, the £2,500. G rejected both offers. Manchester then formally accepted G’s initial offer of £2,500 which had not been formally withdrawn in the interim. G then purported to withdraw the offer and Manchester applied to the Court, which held they were able to accept the offer. On appeal, G argued that i) Manchester had rejected the offer initially, making it incapable of acceptance and ii) G’s refusal of Manchester’s offer of £2,500 was an implicit withdrawal of her offer.

Held: Part 36 is quite clear: “a Part 36 offer may be accepted at any time unless the offeror has withdrawn the offer by serving notice of withdrawal on the offeree”. There was no need to import common law contract ideads into Part 36, which was a freestanding set of rules. Appeal dismissed.

In L G Blower Ltd v Reeves, R had made various offers at various times in varying amounts At one point all previous offers save for a ‘May 2007′ offer were expressly revoked. There was then a further offer in February 2008, which was not in the form of a Part 36 offer, but did re-state the amount of one of the earlier, revoked offers. At trial the award to B was not significantly greater than the Feb 08 offer and the Judge awarded B half its costs from R from the date of the offer. R contended that B should have paid their costs from the date of the offer.

On appeal, R argued that the Feb 08 offer was not a Part 36 offer and that the May 07 offer was therefore the only part 36 offer valid at the time of trial. The court agreed, but found that the award at trial was still higher than R’s offer once interest and costs were taken into account.

The court went on to express views on whether a Part 36 offer automatically revokes a previous one or whether there can be concurrent offers, each open to acceptance.

Although at first sight it may seem anomalous that a party should be able to make several offers in different terms, all of which may at any one time be capable of acceptance, that does in my view reflect both the language and the purpose of Part 36. As to the language, Part 36 is quite clear as to the manner in which offers may be made, varied and withdrawn. It does not provide that only one offer may be available for acceptance at any one time; nor does it provide that a later offer is to be treated as a varying or revoking a previous offer and it would be inconsistent with the recognition of Part 36 as a self-contained code to read provisions of that kind into it. The purpose of Part 36 is to promote settlement by encouraging sensible offers. As Mr. Plewman pointed out, every Part 36 offer carries with it certain consequences for costs linked to the date on which it is made and the financial implications vary as the proceedings progress. For example, an offer of £10,000 made at an early stage may be more valuable than an offer of £12,000 made at a later stage, depending on the amount of costs that have been incurred in the meantime and prevailing rates of interest. There is no reason why a party should not make more than one offer and leave it to the other to decide which, if any, to accept. Or, if he wishes, he may change the terms of the original offer which then continues to stand in its varied form as from the date it was originally made. I accept that in some cases there could be argument about whether a later offer was intended to vary an earlier offer or to stand alongside it. The solution, however, is for parties and their legal advisers to follow the requirements of the Rules carefully and make their intentions clear. If they do so, problems of that kind should not arise.

This may make it difficult to calculate the value of offers when assessing whether a party has beaten its offer at trial.

In any consideration of the effect on costs of an offer to settle it is necessary to compare the amount of the offer with the amount for which judgment has ultimately been obtained. Offers under Part 36 are treated as inclusive of interest (rule 36.3(3)). However, since interest is normally awarded in respect of most or all of the period for which the successful claimant has been kept out of his money, it is usually simpler to concentrate on the principal amount in dispute when deciding whether the claimant has recovered more than was available to him under the offer. Clearly, the longer the proceedings go on, the more the successful claimant can expect to recover by way of interest, but the additional amount reflects nothing more than the additional time spent waiting to obtain judgment and any change in interest rates in the meantime. Accordingly, in cases where a sum is offered under Part 36 or an offer is expressed to be inclusive of interest, in order to evaluate the offer it is necessary to take into account how long the principal sum has been outstanding and the rates of interest likely to be awarded by the court.

The upshot is:

1. A Part 36 offer is open until expressly and formally withdrawn, even if the other party has rejected it.
2. It is possible for there to be concurrent offers, each in different amounts at different times, unless previous offers are formally withdrawn. Costs and interest at the date of offer should be considered in assessing its value.

Be careful out there…

Paula O’Brien v Jacqueline Jones & Andrew Alexander (T/A Belvoir Huntingdon). Claim No 9KG00335 12/02/2010 [On Lawtel for some reason]

Ms O’B (hereafter B) was the assured shorthold tenant of Ms J (hereafter J), whose managing agent was Mr A (T/A BH) (hereafter ‘the agent’). The tenancy was ended by agreement on 19 December 2008. B had withheld the last two months rent due to her concerns about the condition of the property.

At the time of hearing, and after some amended pleadings, the position was that B claimed against J under s.11 Landlord and Tenant Act 1985 for disrepair. B claimed against J and the agent for an order under s.214(3) Housing Act 2004 for the deposit of £950 and the 3 x payment. J counterclaimed for the last two months rent, which was not opposed by B, save for a set off.

No dispute was raised by J or the agent as to whether the deposit was returnable, save for a set off against the rent claim. The Agent also conceded that any order under s.214(3) could be against landlord and agent (although the Court took the view that such liability for the agent was far from clear).

The deposit was protected with The Dispute Service and had been protected by the agent within 14 days of receipt.

What was at issue and formed the basis of B’s claim under s.214 was that the information provided by the landlord did not meet the requirements of s.213(5); and/or that the landlord had not complied with the initial requirements of The Dispute Service under s.213(3).

Under s.213(5), B argued that the landlord had failed to provide a personal address and telephone number under the prescribed information. The landlord had provided an address and phone number in the tenancy agreement, pursuant to s.48 Landlord and Tenant Act 1987. The address was the agent’s address. B argued that the Housing (Tenancy Deposits)(Prescribed Information) Order 2007 required a personal address for the landlord. The landlord had in fact provided a personal address before B made her application, and, in agreement with HHJ Bullimore in Harvey v Bamforth (our report here), there is no breach where the prescribed information is provided after 14 days but before and application was made by the tenant. But in any event, it was not found that a failure to provide a personal address rather than an agent’s or business address was a breach. The Order did not provide that it must be a residential address if that is different to an address for notice and service under s.48(1) L&T 1987.

Under s.213(3), B argued that the tenancy agreement did not comply with the initial requirements of the TDS scheme in that the TDS required their ‘members’ to include certain specified clauses (the ‘G Clauses’) and these were not in her tenancy agreement.

J and the agent argued that including the clauses, or the information they contained, in other documentation was sufficient. B had had the tenancy agreement, inventory, prescribed information and a leaflet called ‘What is the Tenancy Deposit Scheme’, (this leaflet was unfortunately not in the evidence). B had also requested from TDS the content of the G Clauses and had been provided with them by TDS.

The Court found that the information that had been provided was also to be provided under the TDS initial requirements, so seemed unlikely to by itself remedy the lack of the G Clauses. The provisions on the G Clauses in the TDS rules of membership were clear – the clauses were to be included in the tenancy agreement and their wording was not to be changed or amended. TDS had apparently confirmed in correspondence with J and the agent that they considered that the tenancy agreement was in breach of their conditions, although they did protect the deposit. It was not clear, as argued by J and the agent, that the issue was a mere technicality and didn’t prejudice B, as the G Clauses did contain significant information and further, the TDS had stated that due to the breach, their arbitration service would not be available.

S.214(2) was engaged. Contrary to the argument of J and the agent that the words ‘as the court thinks fit’ in s.214(3) meant a discretion as to whether to make any order at all, the only alternatives were to order return or protection of the deposit. The deposit had been registered, but could not be dealt with under the TDS dispute resolution scheme. Ordering the return of the deposit was the only viable option. Having made such an order under s.214(3) an order for the 3 x penalty must be made under s.214(4) – so the order was for a payment of £3,800 to B.

On the disrepair, the items complained of that engaged s.11 Landlord and Tenant Act 1985 and that had caused loss of enjoyment and inconvenience were:

• Rising damp to one wall of the dining room with raised wallpaper and some damp spotting, sufficiently serious to require remedial action. Complained of in August 2008, should have been remedied by October 2008 at the latest, so damages for a period of two months, albeit that the inconvenience was relatively minor.
• No hot water due to a defective boiler following a leak. The boiler was off for a week and should have been repaired within 4 days, so damages for the remaining 3 days.
• Kitchen floor, damaged in the boiler leak. Part of the kitchen floor was removed and not replaced in early October 2008. J and the agent argued that the delay in repairing was due to difficulties with the insurers, who would not authorise works for over a month. This was not a valid reason for delay. It was not reasonable to wait for the insurers to deal with the claim. Damages for a period of 7 weeks.
• Kitchen door – the frame was pushed out of the wall by the expanding floor boards due to the boiler leak, leaving a gap between frame and wall. There were no drafts or water penetration, so the inconvenience was solely not being able to use the door, which was a minor inconvenience as there was another door to the garden. 7 weeks damages.
• Boiler and wiring left exposed after works. J’s enjoyment affected as she had to take care to ensure the safety of her children while in the kitchen.
• Boiler debris and loose decking. Boiler parts were left on the outside decking and a piece of decking had been left out of place. Both were at best minor inconveniences. The boiler parts could have been moved by B.

All together, damages for disrepair assessed at £500. Rent was £950 per month and the longest period of damages – the damp – was two months.

The remainder of the items claimed by B were either not capable of being disrepair under s.11, had not been reported and/or had caused no inconvenience.

The set off of £1700 in unpaid rent against the awards to the tenant had been agreed by the parties.

Comment
Apart from the disrepair claim being an illustration of how tenants tend to routinely over value claims – B’s view was the withholding the last two months rent was an appropriate recompense for her inconvenience – this is an interesting (although County Court DJ and non-binding) decision on the meaning of ‘complying with the initial requirements of the scheme’. While Harvey v Bamforth on late compliance in providing the prescribed information is expressly agreed with, it appears in this case that a breach of a Scheme’s requirements for something like the terms of a tenancy agreement could fall foul of ‘the initial requirements of the scheme’ and be non-remediable at a later point.

However, how such a breach is to be discovered is another matter. B’s evidence, entirely reasonably, was that she was unaware that there had been such a breach. Unless the other documentation provided to the tenant sets out the requirements of the Scheme for its members, or the required inclusions such as the G Clauses here, how is the tenant to realise that there has been a breach, unless or until the Scheme refuses to provide the arbitration? B apparently discovered the omission only at the end of the tenancy when she approached the TDS about their dispute resolution scheme, only to be told that the omission meant TDS could not deal with the dispute.

In short, what this looks like raising is a form of breach with is both irremediable by the landlord and unlikely to be discovered by the tenant until the Scheme refuses to provide arbitration services – at or after the end of the tenancy. So, yet another Jubjub bird to beware of in the Housing Act 2004 provisions, or is it a frumious Bandersnatch to shun?

(I do wonder why the landlord didn’t simply return the deposit in full and then seek to argue that no order under s.214(3) could be made, so no award under s.214(4), but perhaps the TDS would not allow that once proceedings had begun.)

For all tenancy deposit scheme posts, click here.

This was an appeal to the High Court of a decision by the London Rent Assessment Committee (LRAC) that the maximum fair rent payable by Mr Murphy for the flat in Brick Lane, Spitalfields was £8.50 per week. The appeal was brought by the landlords, the Ahmeds. Neither the tenant, Mr Murphy, nor the LRAC attended or were represented.

As a case, it is primarily about assessment of maximum fair rent for protected tenants, but there is something for everyone in there, from security of tenure to ‘reasonable notice’ in disrepair. It also features one of the most bewildering set of appeal submissions by solicitors that I’ve yet seen, and that even includes my own. This is a lengthy post, because the case covers a lot of ground and because the details of Rent Act protection are no longer common parlance.

Mr Murphy had a tenancy of the first floor flat 132 Brick Lane since, it appeared, July 1974. On that basis, he was a Rent Act 1977 protected tenant. A fair rent of £8.50 per week was registered in 1984. There was no copy of any original written tenancy agreement and the 1984 registration had it as “Landlord responsible for repairs and external decorations. Tenant responsible for internal decorations. Subject to section 11 Landlord and Tenant Act 1985″.

The flat was always poor accommodation, “comprising 2 room(s), 1 WC, 1 area with sink”, off the first floor landing. (No bathroom etc.). The flat was furnished, initially, by the landlord. In 2008 it was described as follows:

The two rooms of the tenancy were heavily stacked with boxes, books and other personal belongings. The flat was barely habitable and no decoration, repairs or essential improvements have been carried out for many years. The only cooking and washing facilities were located in the scullery which only contained the original stone sink with only cold water. The flat lacked heating. The rear room, although described as the kitchen, contained no units or sink. There was no plasterboard to the ceilings and the underside of the floor joists of the floor above were visible within the flat which is subject to disturbance from both the restaurant below and the flat above

In about early 2008 – the date was unclear – the four Ahmed brothers acquired the long head lease of the building. The had plans for the building. The upper floors were converted into a three bedroom flat, finished to a high spec, and let for £2,600 per month. The Ahmeds approached Mr Murphy in July 2008, stating that they wished to undertake extensive works of repair and refurbishment. Mr Murphy agreed in principle that the landlords could carry out ‘legal adjustments’ and asking that his books and papers be stored in the then empty upstairs flat during works.

Through their solicitor, the landlords then served a notice on the tenant on 18 July 2008 notifying him that they wished to have access to his flat to carry out their planned improvements, refurbishment and repair work. The tenant responded to the landlords’ notice on 19 July 2008 by informing them that he wished to remain in the flat whilst landlords carried out such of their proposed work as they were entitled to carry out and, in the meantime, to move many of his possessions temporarily upstairs so that he had access to them.

The Ahmeds’ response, through their solicitor, was to inform Mr Murphy’s solicitors that extensive works of refurbishment were planned and that the flat would then be let at a commercial rate. The Ahmeds told Mr Murphy he would have to move out during renovations, but that they would not provide alternative accommodation. Mr Murphy’s solicitors responded that Mr Murphy had never agreed to leave the flat and then return at a full commercial rate. He had nowhere else to live and this was his main residence.

To this, the Ahmeds’ solicitors responded that:

the tenant was not a tenant at all. It was suggested that his tenancy had been granted by [a] Mr S Haque at a time that he had no interest in the property or right to grant a tenancy to the tenant. As a result, it was contended that the tenant’s rent protection should have been ended when whatever interest held by Mr Haque in the property terminated many years previously.

Some 6 weeks after this last letter, the Ahmeds, in an act of quite stunning shortage of eptitude, applied to the Rent Officer to register a fair rent for the property, contending that the rent should be between £140 and £160 per week. (Their later explanation in the grounds of appeal, drafted by their solicitors, of how this application was somehow congruent with their insistence that Mr Murphy wasn’t a tenant was that “As the [tenant] was tricky and avoiding his duty and responsibility to be co-operative with the appellants being the landlords, they applied to rent service to fix a fair rent.” Which only makes things worse).

The Rent Officer, however, accepted the Ahmeds’ contention that the flat had not been refurbished or repaired because the tenant had refused to allow the work to be carried out. For reasons not given, the Rent Officer also evidently decided that The Rent Acts (Maximum Fair Rent) Order 1999 did not apply, and assessed the fair rent as £90 per week from December 2008.

The 1999 Order sets a cap on the increase in any registered fair rent, or previously payable rent, for protected tenancies.

The maximum fair rent is calculated by uplifting the previously registered fair rent by an amount ascertained from the application of the formula. This formula is based on the relative movement in the Resale Price Index (“RPI”) in the intervening period between the date on which the previously fixed or agreed rent took effect and the effective date of the new fair rent. The 1999 Order exempts from the cap any fair rent increase of at least 15% that is attributable to repairs and improvements carried out by the landlords.

£90 wasn’t enough for the Ahmeds, so in a continued display of eptlessness, they referred/appealed to the LRAC, again seeking a rent in the £140-£180 per week bracket. I can’t resist a quote from the Ahmeds’ solicitor’s reference/appeal document:

the landlords have offered the tenant and always are willing to develop the living condition which have been resisted him by be (sic) demanding and looking for an unreasonable temptation to be provided him with accommodation in a bed and breakfast whilst the refurbishment works to be carried out. He was paying few pounds whereas his demand was to provide him accommodation in an alternative accommodation, did not make any sense, which was needless to be considered as perverse and irrational on his part. Due to long awaiting need of refurbishment in the accommodation … if the refurbishment and improvement were allowed the potential rent will be far more than £200 for the two rooms. … In the light of that the rent of £90 would be much lower than it should have been. The maximum rent provision should thus not applicable in the disputed premises.

The LRAC decided that:
(1) The exception contained in the 1999 Order was not applicable. This exception, mentioned above, provides that a fair rent increase is not covered by the capping provisions of the 1999 Order if at least 15% of the fair rent increase in question is attributable to improvements or repairs that had been carried out by the landlords.
(2) The likely market rent would be £125.00 per week.
(3) A deduction of £93.75 should be made for the difference in the condition considered usual for a letting of the kind in question and the much poorer condition of the tenant’s flat.
(4) A further deduction of 20% should be made for the substantial scarcity of properties to rent that existed in the Greater London locality.

The LRAC set a capped rent of £6.00 per week from March 2009, later amended to £8.50 per week when the LRAC realised that the current rent was £8.50 and that Article 2 (4) of the 1999 Order means that there can be no decrease in rent as a result of the relevant calculations.

The Ahmeds, clearly learning from experience, appealed to the High Court.

The grounds of appeal are drafted in a diffuse and ungrammatical manner and they do not clearly identify the points of law that are raised in relation to the LRAC’s decision. However, five issues can be seen to be raised by the notice of appeal and a further issue of law arose during the course of the hearing. These six issues of law are as follows:
(1) Whether, as contended by the landlords, the tenant is not a protected tenant at all but is instead, a short-term tenant who has no statutory protection or a licensee so that the LRAC, in consequence, had no jurisdiction to register either a maximum or a fair rent. If so, the Rent Register should be corrected by the removal of the registration of a maximum rent.
(2) Whether the LRAC failed to give any or any adequate reasons for its conclusions relating to the inapplicability of the 1999 Order, the choice of comparables and the calculation of the discount that it applied.
(3) If the LRAC had jurisdiction, whether it was in error in determining that the tenancy was subject to The Rent Acts (Maximum Fair Rent) Order 1999 (“the 1999 Order”) that capped the increased rent so that the significantly lower maximum fair rent and not the fair rent otherwise decided on should be registered and recovered. The landlords contend that, instead, the LRAC should have reached the same conclusion as the Rent Officer, namely that the tenancy was not subject to the 1999 Order and that the fair rent should be registered.
(4) Whether the LRAC was in error, if it had been correct in determining that the 1999 Order was applicable, in the way that it applied the capping formula in the 1999 Order, specifically in not taking account of the rebasing of the applicable index that had occurred in January 1987.
(5) Whether, in determining a fair rent, the LRAC erred in not properly taking account of appropriate comparable rents and in discounting the fair rent on account of both disrepair and scarcity.
(6) What should be the effective date for the registration and effect of the maximum or fair rent finally arising from this appeal from the LRAC’s determination. The three contending dates are the effective date of the Rent Officer’s determination, the LRAC’s decision or the date of the Administrative Court’s order determining this appeal.

Held:

On (1) this ground of appeal was withdrawn by Counsel, who had had no part in drafting it, but fell to be addressed as it went to the jurisdiction of the LRAC. The contention that Mr Murphy was not a tenant was rejected as having no legal or factual basis. On the Ahmeds’ application to the Rent Officer “It would appear that the landlords were under a misapprehension that the fair rent jurisdiction could be used not for fixing a fair rent [but] for the quite different purpose of their being able to obtain access to the flat to enable them to undertake repairs and general refurbishment.” This was the only explanation of their application to the Rent Officer when they were denying there was a tenancy.

On (2) – lack of reasons – the LRAC had given sufficient reasons for the Administrative Court not to interfere with the decisions:

A Rent Assessment Committee, like any judicial decision, must give adequate reasons for its decisions. What amounts to adequate reasons can only be determined in the context of a particular decision. In this case, the decision was made by a specialist tribunal with a legally qualified chairman and two non-lawyer colleagues. Their remit was, essentially, to exercise their professional expertise and experience to fix a fair rent taking account of the factors identified as relevant by the governing statutory provisions. That exercise involved a considerable element of local knowledge and a value judgment involving such matters as amenity, relevant comparable rents, levels of scarcity and the habitability of the property in question. [...] The committee, with the agreement of the parties, conducted an unaccompanied view.
In those circumstances, the reasons and reasoning could be brief and it would have been sufficient for the decision merely to identify the relevant factual findings that were made with brief reasoning that identified why those findings were made and any essential supporting evidence relied on to support and shape those findings.

There was one exception where the reasons were inadequate, addressed in (3) next.

On (3) – the lack of applicability of the 1999 Order – the main contention by the Ahmeds was that paragraph 7 of the Order applied.

(7) This article does not apply in respect of a dwelling-house if because of a change in the condition of the dwelling-house or the common parts as a result of repairs or improvements (including the replacement of any fixture or fitting) carried out by the landlord or a superior landlord, the rent that is determined in response to an application for registration of a new rent under Part IV [of the Rent Act 1977] exceeds by at least 15% the previous rent registered or confirmed

The Ahmeds’ argument was, it appears, that the tenant had wilfully prevented works being carried out that would have raised the rental value by over 15%, where the landlord had both the intention and the means of carrying out the works which could and should have been completed before the application to the Rent Officer. In short, the para 7 exemption could not be avoided by the tenant wilfully refusing access. They further argued that the LRAC had failed to give adequate reasons for the decision that the 1999 Order applied.

The Court found that the LRAC had failed to give adequate reasons in this instance. Although it was within their jurisdiction to decide whether the Order applied, regardless of whether the Ahmeds had raised it as an issue in their reference/appeal, the LRAC had not adequately explained why the Rent Officer’s decision was overturned. It was within the Administrative court’s powers on appeal to review the issue on the information provided to the LRAC and the court went on to do that.

It was true that if a tenant had unreasonably refused access for works that the landlord was entitled to carry out, in breach of the express or implied terms of the tenancy agreement, the unremedied disrepair should be disregarded for the purposes of the rent assessment, s.70 Rent Act 1977.

Had Mr Murphy unreasonably refused access and what works were the Ahmeds entitled to carry out?

The tenancy was governed by the terms implied into it by Landlord and Tenant Act 1985. The court found that s.8 (fitness for habitation), s.10 and s.11 applied and governed the repairing obligations of the landlord and the tenant’s duty to provide access.

(In this I would suggest that HH Judge Thornton QC had actually fallen into error, perhaps as only one party was represented and attended. The rent on the flat was £8.50 per week, which puts it well above the upper rent limit for London of £80 per year required for s.8 and s.10 to apply. This does not appear to have been contested at the hearing. However, as s.11 does apply, with what are lesser repairing duties on the landlord than s.8, this in no way invalidates the findings the Court went on to make).

The paragraphs on the repairing obligations and on what constitutes reasonable notice are worth quoting in full:

40 These obligations [s.8, 10 and 11] are not onerous. They require the landlords to maintain the premises in the state of repair that it was in at the time of the grant of the tenancy in 1974 but they do not require the landlords to undertake any improvements save as are necessary to keep the premises in a state fit for human habitation. Thus, in these premises, there was an obvious and essential need to provide facilities for cooking, to repair the ceilings, to eradicate the damp, to provide a hot water supply and to decorate the common parts and the exterior of the premises. These obligations would not extend to providing central heating, partitioning or any other improvements, refurbishment or development works. If the landlords wished to carry out any such additional work, this could only be undertake with the agreement of the tenant, which he would not be obliged to provide. That agreement would need to cover what effect, if any, the non-essential work would have on any rental increase could be made to reflect any improvement resulting from this non-essential work and on any other term of the agreement. If agreement could not be reached, the landlords could only carry out, and insist on being provided with access to carry out, repairs and other essential work that they were required to complete.

41 The tenancy does not contain any express terms as to the provision of access. However, the implied obligations, supplemented by the statutory provisions that I have outlined, include an obligation on the tenant to provide reasonable access for the carrying out of reasonably required repairs. As a corollary to that obligation, the landlords are subject to a requirement to give reasonable notice of the required access and to make reasonable provision for the work in terms of the timing, manner of work and the disturbance and disruption it might cause the tenant. Reasonable notice would need to include full details of the proposed work and the manner in which it was intended to carry it out and reasonable period of time within which to prepare for the proposed works and their execution. If access can only reasonably be obtained by the temporary removal and storage of the tenant’s belongings or by the vacation of the flat or by carrying out the works in a particular sequence or method of working, temporary alternative storage, temporary accommodation or appropriate working methods would have to be provided by the landlords at their expense. The nature and extent of such arrangements would be governed by what was reasonably necessary. The tenant would be entitled to withhold consent for access unless and until the landlords had made all necessary alternative arrangements or had agreed to pay for them and had the means of paying for them.

42 In summary, therefore, the tenant could only be considered to have refused access if the landlords had previously given reasonable notice of wishing to carry out repairs and other work as they were required by law to undertake and if the tenant’s refusal was unreasonable taking account of any proposed alternative arrangements and any funding for such arrangements that had been suggested by the landlords to cover the disruption and disturbance to the tenant that would be caused. In short, the landlords would need to show that their request was reasonable and that its refusal was unreasonable. Moreover, they would have to show that the request only covered work that they were obliged in law or by the terms of the lease to carry out. Insofar as the request extended beyond such work, access for such additional work could only be required if the tenant had agreed to it being carried out. The tenant would have had no obligation to agree and he could not be required to agree to any such extra work.

Thus, given the facts set out above, including the landlords denying that he had a tenancy at all, Mr Murphy’s refusal to allow access was wholly reasonable and could not trigger the exemption via para 7 of the 1999 Order and s.70 Rent Act 1977. The LRAC’s decision was entirely right in this regard even if it was not clear how the LRAC had reached it. There simply was no reasonable request for access.

(4) – the application of the 1999 Order capping mechanism

I will leave detailed discussion of this point to a forthcoming post on a interlinked case, Compatriot Holdings Ltd v The Chairwoman of the London Rent Assessment Committee and others. However, what was held was that the LRAC had erred in its use of the Index of Retail Prices by not taking into accout the ‘rebasing’ of the Index that took place in January 1987 (resetting the index to a base of 100 at that date). Although the relevant passage of the capping formula simply stated that the figure for the Y element of the formula was to be:

the published index for the month in which the rent was last registered under Part IV before the date of the application for registration of a new rent and the X figure is the index published in the month immediately preceding the month in which the determination of a fair rent is made under Part IV

This did not mean the exact figure printed for that date in the Retail price index, but rather the figure adjusted to take account of any intermediate rebasings (since the index began in 1947, rebasings happened in January 1952, January 1956, January 1962, January 1974 and January 1987). The LRAC should have appreciated that its approach was nonsensical because if the X and Y figures came from either side of a rebased date, the figure for the rent increase would inevitably be negative, as they found here.

The correctly calculated figure for the capped rent was £12.

(5) had the LRC erred in not taking account of comparable rents and in reducing the figure provisonally for scarcity and poor condition?

On the comparable rents, the Ahmeds had presented no evidence to the LRAC save for the rent of the 3 bedroom flat upstairs, which was in no way suitable as comparator. On both the comparable rents and scarcity, the LRAC was expressly constituted to have specialist local knowledge and was able to make such assessments. The Ahmeds’ belated sheaf of internet print outs from letting agents was not admitted, but was not sufficient to give comparators in any event. The fair rent found by the Rent Officer – £90 – and by the LRAC before deductions – £100 – were sufficiently similar to suggest accuracy. The discount for poor repair was based on the evidence presented and a site visit and was not assailable as ‘provisional’.

On (6) the proper date for the start of the revised rent of £12 per week was the date that the LRAC’s rent assessment would have been in effect, June 2009.

Appeal allowed to the extent of the revision of the capped fair rent. No order as to costs.

Aside from the details of fair rent assessment, which of interesting, if now of limited use, the more general observations on eligible repairs, what constitutes reasonable notice and circumstances in which a refusal of access may itself be reasonable are potentially of use in the broader run of disrepair cases, where allegations of tenants refusing access by landlords are common. While it is explicitly notice pursuant to repairs under s.11 (and s.8 & 10) Landlord and Tenant Act 1985 that is addressed, the same principles of reasonable notice can be argued for the expresss terms of a tenancy agreement. The kind of information that should be be provided for notice to be reasonable could well be of use to tenants’ advisors.

Now, does anyone know who solicitors for the Ahmeds were? The judgment is, perhaps mercifully, silent on this. Emails please, rather than comments. Let us be merciful too.

Harlow District Council

Ms S was Harlow’s secure tenant. Due to a leak, the ceiling in her daughter’s bedroom became damaged, in danger of falling and unsafe. Despite Ms S’s complaints, Harlow did not carry out repairs for 18 months, during which time her daughter either had to share her bedroom, sleep on the sofa or stay with friends. The daughter also had no private place to study, which affected her college work. Harlow denied liability for the cost of repairs, as did their contractors’ insurers, although the works concerned fell clearly under Harlow’s repairing obligations under the tenancy agreement.

The Ombudsman found that Harlow had:

– delayed unreasonably in carrying out the repairs;
– failed to keep her informed;
– did not deal with her Stage One complaint;
– did not make arrangements for covering the duties of an officer who was absent on long-term sick leave; and
– failed to take the actions it promised.

The Ombudsman recommended Harlow pay £4,500 compensation.

Hat tip to the Garden Court Bulletin for pointing this one out. Although we don’t have details like the level of rent or how the Ombudsman arrived at the figure in any detail, this is a rather more realistic (higher) level of compensation than often results from complaints to the Ombudsman. £3000 per annum is still perhaps a bit low, but better. However, it is expressed to include Ms S’s time and effort in pursuing her complaint, so perhaps not as encouraging as all that on level of compensation.

But, they can also make what counts as a silly procedural error of considerable significance.  One such procedural error was the subject of a judicial review application in R(Adow) v Newham LBC, before McCombe J on 14.04.10, as yet unreported (link is to PDF of judgment provided by Pierce Glynn).  In summary, they have been getting an external doctor to do their allocations medical assessments and have done so for a while.  Well, there’s nothing wrong with that (as a matter of law at any rate, although it can raise its own issues as Ealing/Locata found).  It was probably a cost-effective solution to a personnel issue.  The problem for Newham is/was that their allocations policy states that allocations medical assessments are to be done in-house by an officer as part of a particular team.  They did not alter this element of their policy before contracting with that doctor.

They were, therefore, the subject of a successful judicial review on that ground, which was also successful on relief.  Ms Adow was living in a one-bed Newham flat, with her Mum and a number of children. Her GP and a consultant paediatrician said that she should have medical priority.  Newham’s external doctor said no.  JR was therefore initiated but Newham did not file an acknowledgement of service.

The summary I have found is not particularly adequate, but it does make clear that Newham admitted that, at the relevant time, they did not have a person who could lawfully make the relevant decision.  In a witness statement, they assured the Court that the issue would be resolved but it was also recognised by the court that the authority had not abided by the relevant administrative rules.  Ms Adow had also been re-housed by this point.

The summary says that the Court granted a declaration against Newham because, in the circumstances of the instant case, they had failed to abide by the law; if there had been frank compliance with administrative procedures and a clear admission from the outset by them, then a declaration would not be necessary; however, they had acted with a lack of candour which was simply not acceptable.

Newham’s position is now hugely problematic – any allocations medical assessments for priority which any external doctor has done for Newham in at least the past three months are judicially reviewable at least; and what are they going to do with prospective applicants?  It’s an unfortunate mess.  One way out might be to seek to ratify their actions prospectively and retrospectively.  Prospective is fine, I think; but retrospective?  That raises an interesting question which, I’d say, would also be likely to end up in the administrative court …

[Edit: The transcript for this case appears here.  There is little new to add to the above and to the comments.  However, two points are worth noting:

(1) It does appear that Newham sought both to obscure their policy in correspondence with the Claimant's solicitors (para 9) and then really did not engage with the JR claim at all until the last minute - their reason for not doing so in part was that they were shifting to a paperless office:

I have been told frankly, and I acknowledge the proffering of the explanation with gratitude, that some of this resulted from the council's system of trying to minimise paper in their office and scanning everything into a computer system and then for the paper or the relevant non‑paper to be directed to the proper officer or employee within the council. (para [12])

One feels for David Carter, counsel for Newham, in these circumstances.

(2) There is, in my experience, always an awkward moment at the end of such a hearing when costs are being discussed.  If I’m successful, and in truth it doesn’t happen that often, I wonder at my brilliance (self-delusion is wonderful).  Coming back down to earth/reality, though: costs.  In this case, costs were awarded on a standard basis, not an indemnity basis, partly it appears because counsel for Ms Adow did not press for indemnity costs.  Note to self … ]

Let us say that I just saw a prospective new client, who had received notice of warrant. She was a Council secure tenant and the issue was rent arrears of several thousand pounds. Various reasons given, but alas none of them involving housing benefit.

The original possession order – which she didn’t have to show me – was from about 2004 judging by the claim number. According to the client, there had been two previous stay applications, where terms were c. £5 per week towards the arrears. Also at some point, the arrears had been paid off, but then built up again.

Admittedly there is an absence of documents, but my nose is telling me that there may well have been procedural issues, either on the SPO, on its enforceability or obtaining a warrant now. Could be wrong, of course, but there was that faint but distinctive odour of cock-up by the Claimant.

After a chat, it also appeared that there was significant disrepair at the flat and had been for some 2 years or more, including long term water penetration through a bedroom ceiling. There had been inspections but no works by the Council. However, although I couldn’t be sure without the possession order, the odds were that she had been a tolerated trespasser from 2004 to May 2009.

Sounds like an application to stay with disrepair counterclaim? Possibly with either a Schedule 11 Housing and Regeneration Act 2008 application for the replacement tenancy to be treated as continuous (as per Litchmore) or to vary the possession order to a Postponed Possession Order under s.85 Housing Act 1985, to get the full period of disrepair. Certainly that is what I was thinking.

And then, the client had two young children, one with a significant disability, and had serious health problems herself.

So, bang out an initial letter asking for stay by consent and variation of the possession order to a PPO, get hold of the documents then draft up the application?

No.

The prospective client worked. The combination of wage, tax credit and child benefit took her just over the gross income cap for legal aid eligibility, though child care costs and other deductions would have put her in ‘eligible with a contribution’ territory otherwise. No public funding – on the basis of that 50 quid or so a month gross.

A CFA? – after all those are supposed to enable access to justice? No. On the basis of the client’s account of the disrepair (and who knows what might have come out on the documents) even my highest estimate of quantum would be at roughly the level of the arrears. The odds of doing better than the arrears and thereby having a sniff of a costs award were, frankly, touch and go at the very best. This was not going to be a quick or cheap case, plus there would be necessary disbursements (expert fees, court fees on the counterclaim). On an dim and distant chance of costs – couldn’t do a CFA.

Pro-bono? With the best will (and amount of free time) in the world, that runs into the same problems. Hefty disbursements, certainly way beyond anything the client could fund (if she could, I’d say pay off or down the arrears now and then I’ll do a disrepair claim on a CFA). Even if I could do it for free, it would not be possible.

And yes, I looked at the outside chances – insurance policies etc.. No.

As far as I can see, I can’t do the case. There is – at least on the prospective client’s account – a good shot at not just staying eviction but reducing, even perhaps eliminating the rent arrears and of course getting repairs done. But to bring a counterclaim of that sort and to carry it through adequately unavoidably takes money, even if just for disbursements.

I think she likely has a fair chance at a stay application in person, although she is probably not going to be great in front of the DJ. But that disrepair claim, the repairs and her rightful damages are going to go by-the-by, as is the chance to stabilise her situation. And of course, she may be evicted.

And this is the result of £50 per month, although it could equally be £1 per month. If you are over the gross limit, you are over.

Of course, we all know this already and have been through it many times. But sometimes it drives me up the wall. Just saying.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Ms Herelle was the assured tenant of SLFHA (now part of Horizon Housing). Her tenancy of the one bed flat began in September 2001. There had been problems with the property since early in the tenancy including mould growth, an unpleasant odour and damp throughout the flat. SLFHA had carried out drylining to the rear bedroom and replaced damp wall plaster to an area of the hallway in 2006. Rotten window frames with fungal growth, present from an early part of the tenancy, were replaced in 2007.

The landlord’s repairing covenants in the tenancy agreement included the usual terms to repair the structure and exterior and gas/electicity/water/heating installations in parallel with S.11 Landlord and Tenant Act 1985, but also a covenant to repair the interior plasterwork of the property.

On receipt of a single joint expert’s report which stated that the damp was condensation but also due to water penetration due to defective damp proofing in the kitchen, the bathroom and the hallway, which exacerbated the condensation problem, Ms Herelle brought a claim for disrepair. The Single Joint Expert described the odour due to damp as amongst the worst he had encountered. Ms Herelle included damp and mould affected plasterwork in her claim and the historic disrepair to the windows.

SLFHA in the meantime drylined the living room and placed a positive pressure device in the cellar (which SLFHA retained and was not part of the demise). A further single joint expert report confirmed the initial findings of damp penetration to bathroom, kitchen and hallway exacerbating condensation in the property. Other reports commissioned by in 2007 and 2009 by SLFHA, which were in disclosure, also described penetrating damp in these areas.

Shortly prior to trial, SLFHA sought to challenge the Single Joint Expert’s findings and applied to introduce a new expert’s report, which was not yet available at the hearing of the application, which report was apparently to contradict the SJE’s findings in respect of the kitchen and bathroom. The application was dismissed with costs to the Claimant, but the Single Joint Expert was ordered to give oral evidence at trial and to be cross examined on the issue of defective damp-proofing.

Ms Herelle’s claim was for an order for specific performance, general damages for discomfort, distress and inconvenience, and a substantial special damages claim, principally for clothing, footwear, furnishing and other items damaged by damp and mould or by the odour. SLFHA had pleaded limitation, so the claim was limited to the period from February 2003.

At trial, in an extempore judgment, HHJ Welchman accepted the expert’s reports and oral evidence and Ms Herelle’s evidence. It was common ground that, following Quick v Taff Ely BC, there was no liability for condensation per se on SLFHA’s part. However, despite the expert’s evidence that condensation levels across the property had been exacerbated by the damp penetration, HHJ Welchman found that the Defendant’s liability was wholly limited to the areas of damp penetration due to the defective damp proof course; being the kitchen, bathroom and hallway, and any exacerbation of condensation in those specific areas only.

As the Claimant’s belongings which had suffered damage were largely kept in the bedroom and living room, SLFHA were not liable for that damage. There was accordingly no award for special damages.

The judgment further did not mention the Claimant’s assertion that plaster throughout the property was or had been defective due to being damp and mouldy and therefore fell under the repairing covenant. There was likewise no mention of the defective windows.

An order for specific performance was made in respect of the damp proofing works as set out in the SJE’s report, estimated to cost some £17,000, with temporary accommodation to be provided for the Claimant for the duration.

On quantum for general damages, Ms Herelle had argued for assessment on the basis of a nominal reduction in rent, assessed as a percentage, following Niazi Services Ltd v Van der Loo [2004] EWCA Civ 53, and English Churches v Shine [2004] EWCA Civ 434, or, if the Court disagreed, then on the basis of the Wallace v Manchester 30 HLR 1111 ‘unofficial tariff’. The average rent for the period of the claim was £3,495 per annum.

The Court awarded general damages of £5,000 for the whole period of the claim, some 6.5 years, (which amounts to £769 pa, 22.6% of the average rent). The extempore judgment did not explain the basis on which this amount had been arrived at.

On costs, the Defendant argued for no order as the Claimant had not succeeded on her sizeable special damages claim. The Court did not accept this but awarded the Claimant two thirds of her costs, excepting the previous costs orders in her favour, in view of the time likely to have been spent on the special damages claim.

We understand that Ms Herelle has applied for permission to appeal to the High Court, so we may get a High Court disrepair quantum case soon.

Thanks to Anthony Gold and Counsel Victoria Osler for the information about the case.

Tenancy Deposits
O’Brien v Hill Barnet County Court 22/09/2009
Mr O’Brien granted Mr Hill a 12 month AST on 9 June 2008. He served a s.21 Notice on 12 June 2008. On 2 July 2008, the landlord received the payment of the deposit from Barnet Council, which had agreed to pay the deposit on Mr Hill’s behalf, and the deposit was protected on 7 July 2008. Some time later Mr O’Brien brought accelerated possession proceedings relying on the June 2008 s.21. Mr Hill defended on the basis that the s.21 was invalid as at the time it was served there had not been compliance with s.213 Housing Act 2004.

DJ Silverman ordered that the claim be struck out on the basis that the s.21 was invalid, but gave the Claimant permission to restore the claim if he thought that the order should not have been made (!). Unsurprisingly, Mr O’Brien did apply to restore the claim and this time DJ Silverman made a possession order, accepting that no deposit had been received at the time of service of the s.21 and that therefore s.213 did not apply.

This surely has to be the right decision and the first strike out order is frankly a bit odd. It appears DJ Silverman wasn’t entirely happy with it at the time either.

Harassment and Unlawful Eviction Quantum
Odera v Iqbal Luton County Court 3 September 2009
The Claimant had an AST of a room in a three bedroom house with shared facilities, where she lived with her 11 year old daughter. The landlord allegedly harassed her throughout the tenancy by entering without warning. In January 2008, he gave her a defective Notice. The Claimant began looking for alternative accommodation. On 17 February, she backed her belongings and told the Defendant landlord she was on her way to pick up keys for new accommodation. The new landlord refused to give her the keys unless she handed over the full deposit. She returned to the premises. Later that evening, the Defendant and another man removed her belongings and put them outside the property. The Defendant dragged the Claimant and her daughter out of the bedroom, down the stairs and out the property. The police were called but accepted the Defendants word that the Claimant had no right to remain. The police asked the Defendant to store the Claimant’s belongings until the next day (Top work there, Luton constabulary). The Claimant stayed in emergency accommodation, then for 3 days with her sister in Watford. When she returned to pick up her belongings, she found them discarded in the back garden, soaked and rain damaged.

At trial, the Claimant’s evidence was accepted. Damages:
£500 for breach of covenant of quiet enjoyment and trespass for the two weeks prior to the eviction.
£1000 for the assault and method of eviction.
£1500 aggravated damages, particularly in view of Claimant’s daughter witnessing the assault and being assaulted.
£1000 exemplary damages as the landlord sought to increase his income by letting the property as a whole.
An inquiry into special damages – later settled at £750.

Cashmere v Walsh, Downing and Veale Central London County Court 27 October 2009
The Claimant had an assured tenancy of a flat in Docklands from 1990. In 2000, Downing bought the flat as bare trustee for Walsh. Veale was Downing’s mother and a business associate of Walsh.

Between 2000 and 2003 there was minor disrepair at the flat (defective light fitting, non functioning storage heater). There was further disrepair from 2003 onwards – a further non-functioning heater, broken handle on the toilet cistern following a refurbishment of the bathroom, and poor floor covering in the bathroom. The Claimant began spending more time at his girlfriend’s home. Downing and Veal promised to carry out repairs. In December 2007 they asked the Claimant to move out for the duration of works. The Claimant moved out and allowed the landlord to clear the flat of his belongings which were piled in the corridor. The works were completed in a week, including a new front door and lock. When the Claimant asked for a copy of the key he was told he could not have it because there were rent arrears. After being turned away by the Defendants on several occasions, the Claimant engaged solicitors. Pre-action letters received a response from Walsh saying that he was now the owner of the flat and had a new tenant in. On this basis an application for re-entry was not made. The annual rent was £10,920

On a claim for damages, the Court acknowledged that there were ‘historic’ rent arrears of about £7,000 and that the Claimant had caused noise nuisance to his neighbours, but neither of these were the reason for the eviction. The Defendants had chased housing benefit, it was not until the locks had been changed that they demanded payment from the Claimant personally. The true reason for the eviction was the desire to sell the flat, which was achieved after the eviction. Damages under s.27 and s.28 Housing Act 1988 were appropriate, without deduction under s.27(7)(a). Damages on this head £47,000 against Walsh.
Disrepair – £9,200 (4% of rent for the first 3 years; 15% of rent for the next 5 years).
£8,000 against Downing and Veal for their part in the deception and the refusal to hand over keys, which amounted to trespass. The Claimant had taken over 18 months to find suitable alternative accommodation.
£500 for failure to return a deposit.
£6,515 against Walsh and Downing for the loss of the Claimant’s belongings, which were never recovered.
Aggravated damages of £10,000 against all three Defendants. The Claimant had been duped into handing over the keys, even assisting in the removal of his belongings. His belongings had been dumped and the Defendants never told the Claimant where they were. The Defendants has lied about the whereabouts of the belongings to the Claimant’s solicitors, had denied the eviction and denied control over the flat at the relevant time. They had also lied about a new tenant being in place.

Introductory Tenancies
Plymouth City Council v Hill Exeter County Court, 6 November 2009
Mr & Mrs Hill were introductory tenants. Following a valid s.128 Housing Act 1996 notice on grounds of rent arrears, a possession order was made. Plymouth applied for a warrant and a bailiff’s appointment was set. The Hill’s sought further time to pay the arrears and applied to suspend the warrant. A DJ ordered the warrant to lie on the file, as an administrative act. There were two further applications for bailiff’s appointments, two further applications to suspend and two further orders that the warrant lie on the file. At a further hearing, some 5 months after the date of possession, the DJ ordered that the warrant lie on the file for 21 days pursuant to his powers under s.123 County Courts Act 1984. Plymouth appealed on the basis that the power to order the warrant lie on file did not exist, or if it did, the DJ could not suspend execution of the warrant beyond the 6 week period specified in s.89 Housing Act 1980.

Held by the Circuit Judge:
The Court could hear the appeal although the outcome was now academic.
The DJ was exercising a judicial power, not an administrative one.
The power to order that the warrant lie on file in this case did not exist.
The correct power was the one to suspend and this was limited to being up to 6 weeks under s.89 HA 1980 and there was no judicial or administrative power to delay it after that time.

As ever, thanks to Jan Luba QC and HHJ Madge for the updates.

Why yes it was. All 584 pages of it. But amid the headlines about scrapping CFA success fees and recoverable ATE insurance premiums, introducing contingency fees, and of course fixed costs for the fast track, for housing lawyers it comes down to a few paragraphs which largely amount to… wait and see. Here, filleted for your ease and comfort are what look like the key bits to me.

Jackson LJ notes that housing law is a hideously complicated mess (my paraphrase), that this is likely to push up litigation costs, and that the Government proposes to do nothing about it, despite the best efforts of the Law Commission.

Chapter 26 Housing Cases Recommendations 7.1

(i) The Government should reconsider undertaking a simplification of substantive housing law, as proposed by the Law Commission in 2003, 2006 and 2008.
(ii) Where a landlord could use PCOL to issue possession proceedings but chooses to issue manually, he should only be able to recover an amount equivalent to the PCOL issue fee.
(iii) The Rent Arrears Protocol should be amended in order to set out what steps should be taken by landlords, so as to comply with their obligations under ECHR article 8.
(iv) Paragraph 24.2 of the Part 52 practice direction should be amended in order to set out what categories of documents should be lodged by the respondent in homelessness appeals and when these should be lodged.
(v) Consultation should be carried out on the proposal that where a housing claim is settled in favour of a legally aided party, that party should have the right to ask the court to determine which party should pay the costs of the proceedings.

Overall, all possession claims in the fast track should be fixed costs (as most are already) but as for the right level of fixed costs, see below…

Judicial review Chapter 30: Recommendations at 5.1

(i) That qualified one way costs shifting should be introduced for judicial review claims.
(ii) That if the defendant settles a judicial review claim after issue and the claimant has complied with the protocol, the normal order should be that the defendant do pay the claimant’s costs.

Nuisance Chapter 31
Aside from the general points that there should not be recoverability of success fees or ATE insurance premiums, both civil nuisance claims and statutory private prosecutions are pretty much left alone. Of course there is no legal aid for an EPA prosecution, so any success fee would have to come out of the client’s damages as a contingency fee.

But on the big points – fast track fixed fees for disrepair claims – we are left in the dark, at least for now:

Chapter 15

6.12 The position at the facilitative meetings. The data available at the facilitative meetings were insufficient for the purpose of producing any matrix of fixed costs in respect of possession claims or HD claims. Concern was expressed by the participants that there were so many variables that fixing costs was impossible.
6.13 Housing disrepair cases. HD cases are a matter of particular concern, because claims with a value between £1,000 and £5,000 fall within the fast track. This is the only area of litigation (apart from personal injury) where, for policy reasons, such low value claims are included within the fast track.
6.14 Possession claims. In possession claims it is normally the landlord who obtains an order for costs. In my view, there would be benefits for both parties if the costs of such proceedings (where they fall outside the regime of CPR rule 45.1) were fixed. It should also be noted that in their recent report “Turning the Tide” AdviceUK, Citizens Advice and Shelter recommend that: “The Ministry of Justice should consider introducing a fixed fee regime for mortgage possession claims”.
6.15 Professor Fenn is currently exploring the possibility of obtaining further data on housing cases. He anticipates completing this exercise and providing an analysis of any such data by 31st March 2010. Subject to what the data may reveal, it is my intention to invite the submissions of both landlord and tenant organisations upon that data before recommending any matrix of fixed costs for fast track housing cases. I hope then to be in a position to recommend a matrix of fixed costs for possession claims and HD claims, drawing on the advice of the Senior Costs Judge and the CJC.
6.16 In recommending any matrix of fixed costs for housing cases, there are two matters which I shall take into account. First, lawyers who specialise in housing depend upon recovered costs in cases which they win, in order to cross-subsidise their other activities. This is because much of the work of those solicitors comprises providing advice and assistance to clients on legal aid. Legal aid rates for advice and assistance have fallen far behind inflation in recent years, although the move to standard fees may have allowed for some efficiency savings. The second matter is the availability of solicitors firms and law centres which are willing and able to undertake housing work in areas where tenants need their services: see PR [Preliminary Report PDF] paragraphs 31.2.6 and 31.5.1. It is important not to set fixed fees at a level which exacerbates that problem.
6.17 An alternative approach to low value housing disrepair claims. An alternative approach to low value HD claims might be to set up an ombudsman scheme to deal with such claims. This is the sort of area where, traditionally, ombudsman schemes have proved highly effective: see “Civil Justice in England and Wales – beyond the courts. Mapping out non-judicial civil justice mechanisms” by Dr Magdalena Tulibacka. If such a scheme is introduced and proves successful, it might then be possible to make £5,000 (rather than £1,000) the boundary between the small claims track and the fast track. This would bring HD claims into line with all other litigation apart from personal injury claims. This is not a recommendation which I make, because the proposal was not canvassed in the Preliminary Report. It is simply a matter which I raise for possible future consideration.

So, this boils down to ‘there should be fixed costs for disrepair (and possession) but we have no idea what those costs should be. We’re going to try to get some more data and tell you in a few months.’

Actually getting the data, with sufficient detail and comparison points to make it of use in the statistical number crunching, will, I humbly submit, be a nightmare. This is simply not a standardised production-line field, unlike say fast track PI. Even if the detailed figures, end points and outcomes can be obtained, I suspect (on a purely anecdotal basis, obviously) that there won’t be a neat pattern with a few outliers.

This might, just maybe, be the sound of fixed costs for fast track disrepair running out of steam as a practical proposal. Or I may be being ludicrously hopeful.

And of course, the report was commissioned by the Judiciary – the Master of the Rolls. Whether the MoJ take it and implement some or all is another matter entirely.