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.

With a hat-tip to the Garden Court bulletin, here is a decision of the European Court of Human Rights on the enforcement of an eviction. Ms Zolotareva lived in a municipally owned flat with her son, ex-daughter-in-law and grandchild. She thought that could no longer all live together (I refer you to the “ex” in the last sentence and possibly also the “in-law”) and commenced proceedings for the eviction of her son’s ex-wife. She in turn counter-claimed, asking the court to order that they all get rehoused elsewhere.

The court sided with the ex-wife and ordered not only that she and her son (the grandchild, do keep up) should be housed elsewhere, but that Ms Zolotareva and her son should be housed in a different property. The Zolotareva’s flat was assigned to another family. After an appeal was dismissed the bailiff put enforcement proceedings in motion.

Meanwhile, Ms Zolotareva appealed to the Russian Supreme Court. A judge noted that the eviction should be stayed.

Despite this, the eviction went ahead. It clearly took some time and finished at 1:30am. Russian law only allows evictions to be carried out between 6am and 10pm on working days, unless there is an imminent risk to life or health, in which case eviction can be carried out outside those hours provided that it is approved by a superior officer. No approval had been obtained.

Ms Zolotareva then started a new claim, in which the court held that she had been unlawfully evicted. She then started another claim for damages. That claim was rejected for a lack of evidence demonstrating either special or general damages.

Next stop was the ECtHR, claiming breaches of Articles 3, 5, 6, 8, 13 and A1P1. The court dealt first with the Article 8 claim, that is whether the eviction (which Russia accepted was an interference with her Article 8 rights) was in accordance with the law.

Given that the domestic courts had already said that it wasn’t, you would have thought that this would be a bit of a no-brainer. And so it proved. There was no reason to depart from the domestic court’s findings – the eviction was not in accordance with the law as it was outside of the permitted hours and enforcement of the judgment had been stayed.

The alleged breaches of the other ECHR provisions were rejected as manifestly ill-founded and the ECtHR awarded €5,000 non-pecuniary damages.

Seems a fairly obvious result really. Unless Russia has loads of these, and perhaps it does, it seems slightly surprising that they didn’t try and buy her off. Then again, her claim was for the equivalent of around a quarter of a million pounds, so perhaps there wasn’t really a deal to be done.

First, in the High Court:
Suurpere v Nice & Anor [2011] EWHC 2003 (QB)

Ms Suupere was an assured shorthold tenant of the Defendant, of part of a house. The tenancy began on 6 January 2009. Rent was £300 per month, with a deposit of £500 paid to the landlord. The landlord was described by the Judge as ‘inexperienced’.

Relations between Ms S, other tenants and the landlord became difficult. On 11 May 2009, Mr N served a ‘notice to quit’ on Ms S.  This was invalid, not being in the prescribed s.21 form or providing two months notice. On 18 May 2009 a further notice was served, giving two months, but back dated to 11 May 2009. On 12 June 2009, Mr N fixed a ‘notice of eviction’ to the front door, which was, of course, no such thing. On 15 July 2009, Mr N brought possession proceedings in Guilford County Court, relying on the backdated notice. This claim was later stayed.

On 20 July 2009, following a letter from the CAB, Mr N transferred the deposit to the DPS scheme, but no prescribed information was sent to the tenant (nor was the need to do so mentioned in the CAB letter). Ms S did receive information from the DPS about the deposit having been protected.

On 10 August 2009, Ms S issued proceedings claiming for return of the deposit and the 3 x penalty, as well as, later,  unlawful eviction (unsuccessful) and breach of quiet enjoyment (successful). On 14 August, she left the property, allegedly after harassment.  The deposit was returned to her in full on 1 September 2009. Mr N defended the claim saying that the deposit was protected and ‘required information provided’ once they had been told about the requirements of the scheme by Guildford BC. The deposit had been returned in full and there was only ‘an innocent technical breach’.

At the hearing in June 2010, the Circuit Judge relied on Draycott & Draycott v. Hannells Letting Limited (trading as Hannells Letting Agents) [2010] EWHC 217(QB) and found that, as the deposit had been protected prior to the commencement of proceedings, s.214(4) Housing Act 2004 penalties did not apply.

On appeal, Ms S argued that, while the deposit was protected prior to the issue of proceedings, the prescribed information which was required to be provided under s.213(5) & (6)(a) had not been complied with prior to issue or before the hearing of the claim. The Claimant’s claim raised non compliance with s.213(6)(a) so s.214 was enagegd and the penalty order should have been made. Tiensia v. Vision Enterprises Limited(Trading as Universal Estates): Honeysuckle Properties v. Fletcher and Others [2010] EWCA Civ. 1224 relied upon – para 37.

The Respondents argued that:

they transferred the deposit on 20 July 2009; that they gave the Appellant full details of registration of the deposit on 21 July, confirming the deposit reference number and providing details of the DPS website; and that they had complied with their duty to provide information as required by the Act and the 2007 Order. Alternatively, if they are wrong about that and they did not comply, then they contend that they were not required to supply the Appellant with the prescribed information after they had returned the deposit to her on 1 September. They state that the purpose of these statutory provisions is to protect tenants from unscrupulous landlords. They argue that a tenant who has had information provided about the deposit and has then had the deposit returned in full does not require protection. It would have been futile for them to have given particulars of the scheme to the Appellant between 1 September 2009 and 1 June 2010, the date of the hearing of the Appellant’s claim under s. 214, by which time the deposit was no longer in the scheme.

The High Court, Mrs Justice Cox DBE, held:

Following Sharp J in Potts v Densley and Pays [2011] EWHC 1144 (QB), it will make no difference to the landlord’s statutory obligation to provide the prescribed information if, by the date of the hearing, the tenant’s deposit has been repaid.

The letter from the DPS that the claimant/appellant had received did not provide all the information required by the 2007 prescribed information order and it was not enough for the Defendants to say that the information was available on the DPS site. The landlord was obliged personally under the Housing Act 2004 to provide the information.

On representations made after the hearing but once Gladehurst Properties Ltd v Farid Hashemi (on behalf of himself and Matthew Johnson [2011] EWCA Civ 604 had been handed down, the Defendants/Respondents argued that the tenancy had ended when Ms S left the property on 14 August 2009, so, following Hashemi, it was not open to the Court to make an order under s.214.

However, it was not at all clear that the tenancy had ended at that time [paras 61-62]:

there is no evidence to support the submission that the tenancy came to an end when the Appellant left. It was not in dispute in Gladehurst that the tenancy had terminated. However, the Appellant in the present case did not accept that her tenancy had been determined because she brought a claim for wrongful eviction, claiming that she was forced to vacate as a result of the Respondents’ harassment.

Nor is there any evidence to show that she had surrendered the tenancy. The Respondents issued and pursued a claim for possession, which was stayed by Judge Reid pending determination of the Appellant’s claim for damages, and which therefore remained outstanding as at the date of the hearing. In fact, Judge Reid found that the Notice to Quit was defective in this case because it did not provide the Appellant with two months’ notice, as required by s.21(1) of the Housing Act 1988. It is perhaps unfortunate in the circumstances that he did not deal with both claims together and decide the issue of determination of the tenancy before going on to consider the Appellant’s claim in respect of the deposit.

In short, the Appellant’s tenancy had not been lawfully determined as at the date of the hearing. So Hashemi did not apply.

The Judge below should have ordered the payment of the 3 x penalty under s.214(4). Payment of £1,500 ordered.

We only have a short note from the Garden Court Housing Bulletin on the second case, which was a refusal of permission to appeal to the Court of Appeal. I’ve not been able to find a transcript.

Owolabi v Bello [2011] EWCA Civ 881
29 June 2011

The claimant landlady sought possession and arrears of rent. The defendant assured shorthold tenant counterclaimed for damages for unlawful eviction and harassment and for a penalty of three times the deposit (which had not been protected). At trial the judge gave judgment for £2500 rent arrears but on the counterclaim awarded £13,000 damages and repayment of the deposit (£220) and a penalty of three times that amount (£660). The Court of Appeal dismissed the landlady’s renewed application for permission to appeal because it simply amounted to an attack on the judge’s findings of fact based on his having taken a dim view of the landlady’s credibility.

This is an appeal concerning s1(3A), Protection From Eviction Act 1977. This subsection was inserted by the Housing Act 1988 and was intended to fix a problem with s1(3). S1(3A) reads:

Subject to subsection (3B) below, the landlord of a residential occupier or an agent of the landlord shall be guilty of an offence if—
(a)he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or
(b)he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence,
and (in either case) he knows, or has reasonable cause to believe, that that conduct is likely to cause the residential occupier to give up the occupation of the whole or part of the premises or to refrain from exercising any right or pursuing any remedy in respect of the whole or part of the premises.

The new subsection dealt with the difficulty in s1(3) that it contained a requirement that the prosecution show an intent by the accused to make the occupier give up possession or refrain from exercising a right. It had proven difficult to demonstrate the necessary intent in practice. S1(3A) resolved the issue by simply removing the intent component of the offence.

The facts of this case were simple. Q or his niece owned a property. The exact ownership was unclear but Q was the landlord and had control of the premises. It was subdivided into bedsit style accommodation, one of which was let to a couple. A two month notice to quit was served which was defective, however on expiry of the notice Q’s son visited the property with 5 other men and demanded that the occupiers leave. One of the men had a knife and various threats and racially abusive comments were made. Without going into detail the harassment continued despite the intervention of the local authority’s housing options team who explained the occupiers rights in a letter.

Crucially, there was no evidence offered that Q himself had actually carried out any of the actions himself, they had all been carried out by his son or other members of the family. There was also no evidence offered that Q had procured the harassment or encouraged it to continue. It was this that became fatal for the prosecution case.

The case was dismissed in the Peterborough Crown Court at the conclusion of the prosecution evidence on the basis that it disclosed no case to answer. The prosecuting local authority appealed and the case came before the Court of Appeal.

Laws LJ gave judgement on behalf of all three justices.

Essentially the question before the Court was whether s1(3A) allowed a landlord to be “vicariously liable” for the actions of others. It was held that s1(3A) specifically stated that the offence was committed by “the landlord … or his agent”. This wording implies that Parliament intended a separation between the two parties and that if the agent committed the offence then the landlord would not be guilty. Additionally, the wording of s1(3A)(a) uses the phrase “does acts” which implies a direct action by a party as opposed to by another. Finally, the offence requires knowledge, or at least a “reasonable cause to believe” which implies a state of mind by the accused.

The Court was at some pains to stress that their decision did not mean that a landlord could not be found guilty if there was evidence of joint enterprise or incitement or he was a co-conspirator. However, no evidence of that had been offered in this case and the appeal was dismissed.

This is a frustrating case as it now gives landlords a potential way out of unlawful eviction and harassment claims where they get someone else to do the dirty work. However, it should never really have happened and probably would not have done if the prosecutor had properly applied his basic legal training, properly deconstructed the offence, and set about proving each element.

It now falls to Parliament to reconsider the Act if this loophole is to be closed. In the meantime everyone should be aware that a landlord is potentially only liable for unlawful eviction and harassment claims and prosecutions if evidence is adduced which actually fixes him or her as a party to the actions complained of.

I haven’t been able to find a report on this case, save for a note in the Garden Court Housing Law Bulletin for 26 April 2011. If anyone has a transcript, we’d be very keen to see it.

This looks like the end for Mr Carlos Allen’s claim against LB Southwark for harassment. You may recall that, back in November 2008, Mr Allen won his appeal of Southwark’s strike out application in the Court of Appeal (our report here).

The substance of Mr Allen’s claim was that in repeatedly issuing possession claims against him, each of which was on the same ground and each of which was struck out for exactly the same deficiency, Southwark were harassing him for the purposes of the Protection from Harassment Act 1997. The Court of Appeal had held that Southwark’s behaviour was at least arguably capable of constituting harassment and re-instated the case.

From the Garden Court note, it appears that the first instance court found that Southwark had brought the possession claims in good faith, albeit ‘mistakenly or incompetently’. (Southwark had argued in the Court of Appeal that its behaviour might have been ‘careless, negligent, even vexatious’ but not harassment). The claim was dismissed.

It also appears that Mr Allen then applied to the Court of Appeal for permission, but was refused on the basis that on the facts there was no real prospect of showing that the Judge was wrong.

Again, if anyone has a transcript, we’d be very grateful.

[Update. I've seen a transcript. As we noted before, the issue with the possession claims was that Mr A's tenancy agreement provided for him to pay his rent at the local housing office. Southwark then insisted that rent was paid at a bank or post office and refused to take money at the housing office. Mr A insisted on paying at the office. Arrears built up, Southwark issued a possession claim, then, as each claim failed, accepted a 'one-off' payment at the housing office. More arrears, another claim on two further relevant occasions.

The tenancy agreement was not amended or supplemented by Southwark. Southwark's evidence was that it may have mishandled the situation, but it was a matter of repeated attempts to 'regularise' the position, in the last instance with the aid of Counsel. The attempts were in good faith and not therefore 'a course of conduct which, on an objective basis, would be regarded by reasonable people as amounting to oppressive and unacceptable conduct and conduct of sufficient gravity to amount to an offence under the criminal alternative provisions of the Act'. HHJ Mitchell agreed and dismissed the claim

On appeal, conducted in person by Mr Allen, as was the trial below, Rix LJ found that Mr Allen was effectively just a re-arguing of the case on it's facts and therefore disclosed no ground that would give a real prospect of success. Permission to appeal refused. ]

Boyle v Musso, Bristol County Court 25/10/2010

Mr Boyle was an assured shorthold tenant. There had been a dispute with the landlord, Mr Musso about Mr B withholding rent due to flooding in the property. Soon afterwards, in October 2008, Mr M came to the property with another man. Mr B was punched to the ground by Mr M and both men then stamped on him.

Mr M was convicted at Bristol Magistrates of assault occasioning actual bodily harm, with a 24 week suspended sentence, in June 2009. Mr B brought a civil claim.

Mr M initially disputed the claim but failed to file a defence. Default judgment was entered.

At the assessment of quantum hearing, DJ Watson noted that Mr B’s physical injuries had healed fairly quickly, but that he suffered from depression and panic attacks subsequently. Mr B was found to have been left with serious and debilitating anxiety as a result of the assault.

Damages assessed as:

For trespass to the person – £15,000, including aggravated damages due to injury to feelings.
Exemplary damages – £2,000 on a finding that part of the reason for the eviction was the dispute over withholding rent. The DJ found that Mr B was entirely justified in withholding rent.
Breach of covenant of quiet enjoyment – £4,000 assessed on the basis of 22 days spent sofa surfing or in unsuitable B&B/hostel accommodation.
Special damages (loss of belongings) – £750
Return of unprotected deposit – £485, and 3 x deposit (£1,455) penalty for failure to comply with the Housing Act 2004 requirements.

Comment
Although clearly a good result for the tenant, some parts of this judgment are, I would humbly suggest, surely wrong.

If the DJ did find that withholding rent was justified, this would have no particular basis in law, and would in any event be wholly unnecessary for the result that the DJ reached. Even if Mr B was unjustified in withholding rent, it should make no difference to a finding on unlawful eviction. It may be that Mr B also had a claim in disrepair, though.

Further, what the hell have exemplary damages got to do with the flood and whether Mr B was entitled to withhold rent or not?

Yes, it is my hobby horse, but exemplary damages are based on a deliberate attempt to avoid legal responsibility/duty; and the measure of damages is the properly the profit achieved (or intended to be achieved – it doesn’t have to be realised) in doing so.

I can’t tell on the report of the case whether a higher award might have resulted if the DJ had taken this approach, or indeed whether it was put to the Court, but in general the best shot of getting decent exemplary damages is if the basis for assessment is clear. Will people please stop treating exemplaries as aggravated damages? Thank you.

And why no damages under s.27 and s.28 Housing Act 1988 (as in, for example, Strydom v Fowler)? It doesn’t look like Mr B had re-entered the property, although I can’t be sure from the report.

A County Court case involving possession, unlawful eviction, trespass and Housing Act 1988 s27 and s28. Our thanks (as ever) to the Legal Action ‘Recent Developments in Housing Law’ for this one.

Mr F was the assured shorthold tenant, on  what had become a statutory periodic tenancy. The landlord was Mr S. Mr F built up rent arrears, eventually agreed at £2189, after the deduction of the deposit. On 16 May 2008, Mr S began possession proceedings, alleging rent arrears and damage to the property. At about this time, Mr F texted Mr S saying  that he would be ‘out in two weeks, maybe sooner’.

Mr F went on holiday. On his return on 27 May he found the locks changed. He forced entry and found Mr S inside holding an iron bar. Mr F ran, breaking his heel climbing over a gate.

Mr F counterclaimed in the possession claim for damages under s.27 and s.28 Housing Act 1988, breach of covenant for quiet enjoyment and trespass.

At trial HHJ Oppenheimer awarded £2,600 to Mr S for rent arrears and damage to the property.

On Mr F’s counterclaim, he found that there was a threat of physical violence. Mr F’s text was only an expression of an intention to leave, not a determination of the tenancy. Mr S had entered unlawfully and did not have reasonable cause to believe Mr F had left, as the beds were made and toiletries present.

The agreed difference in the value of the property with vacant possession and with Mr F in occupation was £12,500. Taking Mr F’s conduct into account under s.27(7), given that it was unreasonable of Mr F not to have been in touch for 5 weeks or responded to text messages, the statutory damages were reduced to £2,500.

Damages for breach of covenant were assessed at £3,000

Aggravated damages for trespass assessed at £1,250

Total damages on the counterclaim £6,750, to be set against the award to Mr S.

Comment

We’d be interested to hear from Francis Ratcliffe, who acted in the case. A £10,000 reduction in statutory damages for ‘not being in touch or responding to texts for 5 weeks’ seems harsh on the face of it. There may be more to the context, of course, but it doesn’t appear that there was anything near enough for Mr S to assume Mr F had vacated or effectively surrendered the tenancy. And then that failure to be in touch set against a finding that there was a threat of violence? Hmm

Mr Kenston McIntosh received three months after pleading guilty at Oxford Crown Court on 29 October 2010. Undoubtedly the sentence was aggravated by Mr McIntosh failing to attend a previous hearing and then being arrested at Gatwick airport while on unconditional bail.

Mr McIntosh refused to cooperate with Housing Benefit enquiries to prove that his tenant was residing at the property and then forced him to leave the property. The tenant was forced to sleep in an abandoned car for several nights.

We have also heard of another case in West Bromwich where the landlord received 10 weeks in prison.

In the past prison was a rare occurrence for unlawful eviction. Actually it was quite hard to get local authorities to prosecute cases at all. It is not clear whether these are isolated cases or a movement towards stiffer penalties for unlawful eviction. If it is the latter then we can only say how pleased we are that magistrates are finally taking this matter seriously.

Imagine, if you will, that, in 1967, Mr Steven Wall was placed with Mrs June Wall, who acted as his foster parent, by Sheffield CC. Whilst Steven was never adopted, he was clearly treated as the son of Mrs Wall and there was no-one else that could be said to have fulfilled that role.

In October 1986, Sheffield CC granted Mrs Wall a secure tenancy of a two-bed house, to be occupied by her and her “son”, Steven. He duly qualified as a solicitor and, after a short spell living and working in London, he returned to Sheffield in June 2002, to live with his mother. Sadly, 51 weeks after moving back home, his mother died of cancer. During those 51 weeks, Steven had cared for his mother. The council served NTQ and issued possession proceedings, contending that there was no-one entitled to succeed to the tenancy. Steven resisted the proceedings, arguing that he had succeeded.

In the county court, two issues arose. Firstly, was Steven a “member of the family” for the purposes of ss.87 and 113, Housing Act 1985. Perhaps surprisingly, foster children are not expressly within the scope of these sections. However, the Recorder dealt with this by finding that Sheffield were now estopped from arguing that Mr Wall was not a member of the family.

The second issue was more common – had Mr Wall resided with his mother for the period of 12 months ending with her death? The Recorder found against Mr Wall on this point.

Mr Wall successfully appealed to the Court of Appeal ([2006] EWCA Civ 495), which didn’t deal with the first issue, but criticised the approach taken by the Recorder to the second issue. The case was remitted for re-hearing.

However, Mr Wall hadn’t sought a stay of execution pending the appeal and, in early 2005 (prior to the appeal), the possession order was executed. The property was then re-let under a new secure tenancy to Mr & Mrs Ingham.

At the restored hearing, Sheffield accepted that Mr Wall had resided at the property for the relevant period. Their claim for possession was dismissed. That, however, was of very limited use to Mr Wall, since Mr & Mrs Ingham were now living at the property. He joined them and sought an order for possession as against them. That claim was also dismissed.

And, so, the mess ended up in the Court of Appeal. Again.

The first matter to consider was the potential succession rights of Mr Wall, or, more shortly, was he a “member of the family” for the purposes of ss.87 and 113, 1985 Act?

The Court was satisfied that, under the Rent Acts, he would have been. Brock v Wollams [1949] 2 KB 388 and, more recently, Fitzpatrick v Stirling HA Ltd [2001] 1 AC 27 were clear authority for the generous approach to be taken when construing that phrase. Context was, however, everything. In the context of the 1985 Act – unlike the Rent Acts – the statute itself defined the scope of “member of the family”. That definition was in s.113, 185 Act and, as already noted, does not refer to foster children. Section 113 was a complete code and Mr Wall did not come within it.

His only recourse was to rely on Art. 8, Sch. 1, Human Rights Act 1998. His Art. 8 rights were clearly “engaged”, but Parliament was clearly entitled to come to the view that only certain persons should be entitled to succeed, such that any violation of Art. 8(1) was justified under Art. 8(2).

So, the appeal failed at this stage. Mr Wall was not – and had never been – entitled to succeed to the tenancy. You may think that this is a rather harsh result, rather unpersuasively reasoned and one that – if right – really should have been dealt with in the 2006 appeal. That, however, is entirely a matter for you.

The court could, and perhaps, should, have stopped there. However, it went on to consider – without deciding – what would have happened if Mr Wall has succeeded.

Firstly, it was clear that the tenancy of his mother would have vested in him immediately. Secondly, the previously decided cases (Brent v Botu [2001] HLR 14; Hillgate House Ltd v Expert Clothing Services [1987] 1 EGLR 65) did not purport to set down any general rule, the answer had to come from the 1985 Act itself; in that regard, when Mr & Mrs Ingram went into possession, it appears that Mr Wall would have ceased to satisfy the tenant condition (s.81, 1985 Act), such that he lost his security of tenure and would be liable to eviction at the suit of Mr & Mrs Ingram, after service of an NTQ. A suggestion to the contrary in Osei-Bonsu v Wandsworth LBC [1999] 1 WLR 1011 was per incuriam.

However, the point did not arise in the present case and was not decided. A further point on costs was also dealt with, but need not concern us here.