Bilgili v (1) Paddington Churches HA & (2) Pathmeads HA [2010] EWCA Civ 1341 (only available on Casetrack, so far as I can tell, but noted in the GC bulletin [edit: eventually appeared on BAILII) is a refusal of permission to bring a second appeal in – what appears to be – a preliminary issue/strike out in a disrepair case.
Mr & Mrs Bilgili were tenants of one of the two named HAs (sorry, PRPSH). They had, in their kitchen, a Crittal window with a spinner vent. It was replaced by the landlords with a UPVC window with no spinner vent. They issued proceedings, claiming that the increase in moisture in the kitchen had led to harmful condensation, resulting in mould growth, damp and a risk to health. This was, I presume, under s.11, Landlord and Tenant Act 1985 (though could also have been derogation from grant).
Reading between the lines, the PRPSH either applied to strike the claim out (or took as a preliminary issue), on the basis that there was no breach of s.11, 1985 Act in replacing a window which had a vent with one that didn’t. The DJ accepted this argument, but an appeal to the CJ on behalf of the tenants was successful. The PRPSH applied for permission to bring a second appeal.
On the papers, Etherton LJ refused permission as the case was neither suitable for a second appeal and, in any event, the CJ was plainly correct on the facts. The PRPSH renewed their application and came before Sedley LJ
Permission to appeal was refused. It was
as plain as a pikestaff in my judgment that a kitchen window which is acknowledged to require ventilation and so has a spinner vent in it, has not been properly repaired if it is replaced with a sealed window that has neither a means of opening nor any form of ventilation (at [5])
There was no point of wider public importance and nothing to justify a second appeal. It was not entirely clear to his Lordship why the PRPSH had bothered to pursue the appeal as the sensible thing would have been to remedy the problem and install an extractor fan.
Comment
Sadly, this sort of behaviour from PRPSH (i.e. fighting daft disrepair cases) is hardly surprising. Anyone who wants any (amusing) anecdotal evidence of this should just offer to buy NL a pint, over when he can recount his many cases involving PRPSH that want to fight everything, regardless of merits. Or evidence. Or law. Or common sense.
Seriously though, surely this was an argument doomed from the start. The obligation to repair is usually taken to mean putting the object back in at least as good a condition as it was before (tho’ in some cases, may include an obligation to put it back in a better condition). This isn’t new law: see, for example, Calthorpe v McOscar [1924] 1 KB 716.