Herelle v South London Family Housing Association Limited, Lambeth County Court, 26 November 2009
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  EWCA Civ 53, and English Churches v Shine  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.