Bits from LAG and nuisance & Art 8

There are several cases in the latest LAG updates that we haven’t covered and that are interesting. Thanks as ever to Jan Luba QC and HHJ Nic Madge for the LAG reports. There are two brief notes on County Court cases and a more sizeable one on Dobson v Thames Water, a Court of Appeal case on nuisance and Art 8 infringement that we had somehow missed from January and which isn’t discussed at length in LAG.

Southwark LBC v Jackson and Jackson, Lambeth County Court 27 January 2009
Mr & Mrs Jackson were elderly joint secure tenants. Mr Jackson had died, leaving Mrs Jackson as sole tenant. Southwark served Notice to Quit on the basis that the tenancy had ceased to be secure due to failure to occupy as only or principal residence. Possession proceedings were brought on that basis, with alleged unlawful subletting and rent arrears. Mrs Jackson did not attend and an outright order was made, followed by warrant. Mrs Jackson applied to set aside the possession order on the basis that she was not living at the property because repairs had not been completed.

At the hearing of the set aside application, Mrs Jackson argued that the Notice to Quit was invalid, giving only 27 days notice rather than 28, and the saving clause didn’t save it. This had not been raised or noticed at the possession hearing. The Court had a power to set aside the order under CPR 3.1(7). Southwark acknowledged the notice was deficient but argued it should not be set aside just for that reason.

The Court, HHJ Gibson, set aside the PO. If the first Court had considered the deficient notice, the PO would not have been made. To let it stand would be to force the tenant from her home other than in accordance with the law. This would be a breach of convention rights.

In addition the Court observed the initial possession hearing had been dealt with very summarily. The DJ did not appear to consider whether Southwark had made a prima facie case that the tenancy had ceased to be secure. Southwark’s own pleading mentioned the presence of someone who said he was the tenant’s grandson, but there was no address to whether or not he was a caretaker for the tenant. From Southwark’s pleadings, there appeared to be significant doubt about whether the tenant had actually parted with possession, which circumstances would also make the possession order unlawful.

That point, that to give possession on anything less than a lawful Notice is a breach of the tenant’s convention rights, could be useful to raise with a DJ otherwise minded to condone ‘minor errors’ or ‘oversights’ in notice. Likewise, to fail to set aside a PO based on defective notice.

Also useful is the insistence that even an undefended summary possession hearing should involve some scrutiny of whether the prima facie case is sufficiently made out.

Evans v Ozkan and Hussein, Bromley County Court 6 February 2009.
Unlawful eviction and harrassment quantum. Mr Evans was a private assured shorthold tenant. The landlords knew he was on benefits before the tenancy began. After about a month, following a delay in HB, Mr Hussein visited, intimidated Mr Evans and demanded £1000. Soon afterwards, Mr Evans returned home to find some of his belongings on the pavement and the defendants throwing out more. Mr Evans was verbally intimidated by Mr Hussein.The police were called and (helpful as ever in cases of illegal eviction, which is, as they constantly need to be reminded, a criminal offence as well as civil one) arrested Mr Evans. On his release later that day, Mr Evans found many of his belongings smashed on the pavement and smelling of urine. Mr Evans slept in his car and returned the next day to find the locks changed. The Defendants followed him to a pub, threatened him with baseball bats and demanded £1000, or his remaining belongings would not be returned. Mr Evans applied as homeless and was eventually rehoused 63 nights later, during which time he was homeless. He claimed for trespass, harassment and unlawful eviction

The defence was struck out for failure to comply with directions and the Defendants represented themselves at hearing.

HHJ Hallan awarded: general damages of £250 per day that Mr Evans was homeless (£15,750), and interest from the date of rehousing; special damages of £5000; aggravated damages of £1000 and exemplary damages of £2000, with interest from date of eviction. Damages otherwise payable under the Protection from Harassment Act 1997 were part of the aggravated damages. Exemplary damages were levied as the Defendants had sought to avoid the due process of law and its attendant costs (presumably, this would apply to virtually any unlawful eviction?).

And – how did we miss this one? – Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28. Going beyond the LAG note, this is a claim in nuisance,negligence and under Art 8 of the convention. Following a hearing of preliminary issues, the Court of Appeal was asked how damages for breach of Art 8 should be assessed, given that the claimants’ enjoyment of their homes had been impaired. The Court was also asked whether such damages would be payable in addition to those in nuisance and negligence.

The issue is that, following Hunter v Canary Wharf [1997] AC 655, damages for private nuisance at common law appeared to the Judge in the court below to be based upon these paras in Hunter:

184(1) That damages awarded for nuisance, where there has been personal discomfort, are assessed on the basis of compensation for diminution of the amenity value of the land rather than damages for that personal discomfort.

184(2) That damages for diminution of amenity value are measured by reference to the size, commodiousness and value of the property not the number of occupiers.

184(3) That damages for compensation for diminution of amenity value of the land may be reflected either in diminution of capital value or rental value.

184(4) That damages for diminution in value frequently raise difficult issues of assessment which can usually be resolved by expert evidence. If such assessment is not reasonable or practicable then the principles on which damages are assessed are sufficiently flexible to do justice between the parties by arriving at a sum for general damages for loss of amenity.

Whereas Art 8(3) says that damages for breach of art 8 rights must accord ‘just satisfaction to the injured party’. the Claimants suggested that this would either potentially ‘top up’ an award of damages for nuisance, or enable separate damages for those without a proprietary interest, but resident – a child or foster-child, for instance.

The Court of Appeal held that:

Damages in nuisance are for injury to the property, not the sensibility of the occupier, Hunter v Canary Wharf.

Where this is for ‘transitory’ nuisance such as loss of amenity, the calculation may be based on loss of market value, but this must take the personal experience of all the occupiers into account, not just that of the person with the proprietorial interest. So the actual impact on the occupiers is relevant. (Certainly non-occupation means no damages, unless the property was being sold or rented and suffered a loss in value, or there was physical injury [para 34]).

The award of damages in nuisance is not to compensate other occupiers of the property, only the person who has the right to sue in nuisance.

Where the creator of the nuisance is a public authority, then Art 8 rights will be engaged. However, the Lords decision in Marcic v Thames Water Utilities Ltd [2004] AC 42 means that where no negligence is alleged, not even the owner of the property would have an Art 8 claim, let alone the other occupiers. So this is a limited issue, for nuisance caused by negligent public bodies only.

Under the convention:

where a public authority has been found to have acted “unlawfully” the court “may grant such relief or remedy …as it considers just and appropriate”. No award of damages is to be made unless, taking account of all the circumstances including any other relief or remedy granted in relation to the same act, the court is satisfied that the award is necessary to afford just satisfaction. In determining whether to award damages, or the amount, the court must take into account the principles applied by the European Court under Article 41. [para 41]

Strasbourg case law has given little guidance on the award of damages. This is a test case, where the claim is, in part, on behalf of an identified individual who has not, personally, had ‘reparation’ under english law. However, it is not irrelevant that this person’s parents may be awarded damages under nuisance and what sums they are awarded. This is part of a consideration whether it is necessary to make an award for just satisfaction, or would a declaration of infringment suffice, alongside the award of damages to those with a proprietorial interest. Where the issue is loss of amenity, the effect on the whole household should already have been considered as a relevant factor – see above – and this would be highly significant in considering the amount, if any, of Art 8 damages to the non-proprietorial occupier.

On whether an Art 8 ‘top-up’ of damages over those calculated for nuisance may be made, the Court of Appeal admits the possibility, but considers it very improbable indeed that Strasbourg would make an award above and beyond an award in damages for common law nuisance [para 50]. Normally, such damages should be considered sufficient.

As to co-owners, if both are in occupation, the effect of the nuisance on each of them should have been considered in the assessment of damages, so splitting the award does each justice. Where one co-owner is not in occupation, for a loss of amenity claim, it would be inequitable for them to claim a share of the award.

So, in a nutshell, it will usually be the case that the claim in nuisance and negligence by the person with a proprietorial interest in the affected property will, if the relevant factors are taken into account in calculating loss of amenity, also constitute just satisfaction for the other occupiers for the purposes of Art 8 infringement. This is because the experience of the whole household is a relevant factor for assessing loss of amenity value.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Nuisance, Possession, secure-tenancy, Unlawful eviction and harassment and tagged , , , , , , , , , .

12 Comments

  1. The Lambeth CC case is, sadly, very familiar. I’ve just settled a case where my client was also made subject to a possession order in circumstances where there were significant defects with the paperwork and pleadings, but, as my client was in person and the claimant was represented by its employee, no-one pointed these out to the DJ, who dealt with the matter in the same cursory fashion as outlined above.

    • One has to have some sympathy with an inner city DJ, working through a 20 case undefended possession list in a morning. From that perspective one can see the virtual impossibility of working through pleadings in close detail.

      That said, for summary possession cases, or for cases without legal representation on either side like yours, there surely has to be a particular duty on the DJ to check the formalities have been met and whether a prima facie case is satisfactorily made out. One would hope that a few successful appeals to the CJ would result in the point being quietly made.

  2. Un-occ matters are rarely dealt with summarily save in those instances where the occupiers admit that they are not the lawful tenants or where the lawful tenant does not attend the hearing, as in this case.

    I agree with NL that it would be preferable for the DJs to examine pleadings with a tooth-pick, but at the same time it is understandable how they would accept non-attendance as a surrender.

    Renting out social housing – usually done for a profit – is a despicable act so, if the Defendant was unlawfully subletting the whole of the property, Southwark will hopefully be able to provide evidence to back up their claim and will be able regain possession next time.

    • I meant summary possession in the sense of possession following NTQ, but yes, a defended non-occupier case would get rather more attention. That is the problem – both the Notice and the pleadings in this case were problematic but it was not picked up.

      I am no fan of sub-letting, but, judging by the LAG note, in this instance there was no sub-let.

  3. When you say the (too short) NTQ wasn’t saved by the saving clause, why wasn’t it? I queried this issue some time ago with Jan Luba (albeit on NRPs) and his view was that a deficient date on a NRP could be saved by an effectively worded saving clause (although I understood that it didn’t).

    • No details in the LAG note, so I can only presume that it wasn’t an effectively worded saving clause. After all, the saving clause has to have the effect of providing for the correct date. If it didn’t do that, then it didn’t save the NTQ.

  4. 1. What is LAG and where would I find it?
    2. Any details on why the police arrested Mr Evans?

  5. LAG is a reference to “Legal Action”, a monthly publication dealing with all aspects of social welfare law, published by The Legal Action Group (“LAG”). No idea about why the police arrested Mr Evans.

    • Sorry – my shorthand. A reminder that we have non-sector readers is good for me…

      No idea why Mr Evans was arrested, but as he was released without charge a few hours later, probably for making a fuss…

  6. In that case, I hope Mr Evans sues the police. Not only is there no offence of “making a fuss”, but crimes were being committed and the police apparently chose to arrest the victim of the crimes rather than the perpetrator(s). It appears there were offences of criminal damage as well as against the Protection from Eviction Act, 1977, not to mention apparent threats of violence. Whatever fuss Mr Evans made appears to have been well founded.

    Yes, the police do need to be reminded about these matters, especially the PfE Act, ’77. A dent in the budget seems to be the only sort of reminder which works. The fact that the local authority is the prosecuting authority for PfE offences doesn’t help, unfortunately.

  7. I wonder if anyone has any evidence (anecdotal or otherwise) that Scotland benefits from having a single prosecuting authority.

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