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14/03/2011

It is a truth universally acknowledged…

…that if a disrepair claim reaches trial these days, then one of three options must be true:
a) there is a genuine and substantive issue of causation or liability (rare as hens teeth);
b) one or perhaps both of the parties are mad;
c) a combination of the above.

White v Quadrant Brownswood Tenants Co-op [2011] EWCA Civ 239 [not on Bailii yet, but we’ve seen a transcript] was a permission to appeal hearing on the Defendant’s renewed application for permission. Once I’ve gone through the details, I’ll leave you to draw your own conclusions as to which of the options, if any, applies here.

Mr White was the tenant of Quadrant Co-op (apparently the same Mr White involved in the possession claim by Quadrant that has an ongoing appeal in the High Court). Mr W had brought a disrepair claim. He was the tenant since 2001 of a split level ground floor and basement flat. He alleged damp to the flat between 2001 and 2007, with the main head of damages being damage caused by damp in a wardrobe which was attached to a wall on the right hand side of the basement bay window. Quadrant denied liability, saying that any damp was due to condensation due to tenant’s usage and/or a leak from the tenant’s washing machine.

Although there had been inspections and works during the period, including installation of new damp proof courses, Quadrant argued this did not show disrepair. The Landlord was not liable for the lack of a damp proof course, or for the subsequent installation of one (unless installed defectively, of course).

Litigation was conducted ‘enthusiastically’ (in Jackson LJ’s words) by both parties. A single joint expert, Mr Parrett, was appointed and inspected, albeit after the problems had apparently been resolved. Both parties put questions to the expert.

The matter went to trial at Central London County Court before HHJ Bailey.

The judge concluded that the defendant had liability in respect of two areas of dampness, which the judge did not regard as being unduly serious. He awarded £25.00 in respect of each of those matters, making a total sum of £50 general damages. The judge came to the conclusion that the claimant was not entitled to recover under section 4 of the Defective Premises Act 1972 compensation for damage to his clothing. The clothing in question had hung in the wardrobe.

The judge’s finding on costs is not recorded in this permission decision, although it is one topic of the full appeal. I understand that the order was that the Claimant pay £50 of the Defendant’s costs. If this is not correct, could someone involved let me know and I’ll put this right. (This looks like what might be described as a plague on both your houses judgment).

Both parties, enthusiasm undiminished (as per Jackson LJ), appealed. Mr W was granted permission to appeal on the ground that:

the dampness found by the judge in one of the areas, namely on the wall where the wardrobe was, had caused damage to his clothing and he was entitled to substantial damages in respect of that by virtue of the defendant’s breach of section 4 of the Defective Premises Act 1972.

Rimer LJ found that this was arguable.

Quadrant appealed against the costs order, which was granted permission on the papers, and against the Judge’s findings in respect of the two areas of dampness. This was refused and one area of damp was the subject of this renewed permission hearing. Quadrant argued

that the judge erred in finding that the defendant was liable for the dampness in the wall by the wardrobe. The judge held the defendant liable for that dampness because he concluded that a rainwater downpipe on the outside of that wall had been defective and dampness had come through from that source. Mr Carr, who appears today for the defendant, submits that the judge was not entitled to come to this conclusion on the evidence before him.

Quadrant pointed to evidence by a person who had fitted the wardrobe in 2005 and saw no damp. The mold on clothes was discovered in November 2006. There was no evidence before the Judge that the down pipe had been defective during this period.

Jackson LJ disagreed. He pointed to a part of the expert’s response to the second set of questions by the parties, where Mr Parrett said:

It should also be noted that there is a new section of plaster to the left hand front elevation wall which is almost full height of the wall. The area of new plaster corresponds to the location of the rainwater pipe externally. In the normal course of rising damp it would not be expected that dampness would reach the height of the new plaster to the left hand front wall which is approximately 2 metres above finished floor level internally. Therefore if the plaster had been replaced to this height because it was damp then that would suggest that the source of dampness must have originated from higher up the wall ie from the rainwater pipe.

The Judge was entitled to rely on this evidence and to find that the rainwater pipe was the cause of damp in this area. There was no realistic prospect that the Court of Appeal would reverse this finding.

Permission on this ground refused.

We await the full appeal hearing, apparently listed for April this year (unless we’ve got it confused with the possession appeal in the High Court again). I must also admit to being confused as to why this is in the Court of Appeal, rather than the High Court. Any info gratefully received.

 

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.

14 Comments

  1. Liadnan

    I must also admit to being confused as to why this is in the Court of Appeal, rather than the High Court

    CPR 52.14 and section 57 of the Access to Justice Act 1999 (power to send appropriate cases direct to the CA)?

    Reply
    • NL

      I know it could be sent directly to the CoA, but CPR52.14 (1) says
      ” Where the court from or to which an appeal is made or from which permission to appeal is sought (‘the relevant court’) considers that –
      (a) an appeal which is to be heard by a county court or the High Court would raise an important point of principle or practice; or
      (b) there is some other compelling reason for the Court of Appeal to hear it,
      the relevant court may order the appeal to be transferred to the Court of Appeal.”

      Important point of principle or practice, or other compelling reason? There may be, of course, but it is far from obvious to me.

      Reply
  2. bm

    Isn’t it just because the trial was (probably) on the multi track? Given how “enthusiastically” the litigation had been conducted the trial was probably longer than a day…

    Reply
    • NL

      Quite possibly – I thought of that, and it would fit. I was just hoping someone knew why…

      Reply
  3. Rick

    One time I had damp in any of my rental properties I was advised by the landlord that it was due to me breathing too heavily and giving rise to excess condensation. They told me to leave the window open at all times. In December. On the ground floor. On a bust street.

    They really will say anything to get out of having to fulfil their responsibilities.

    Reply
  4. Rick

    Apologies for the atrocious spelling in that last post

    Reply
    • NL

      Rick, what you should be apologising for is putting advertising links to a PI claim manager site in as your url. The site is not at all relevant to the post, nor, I’m guessing, do you own it. We don’t hold with such advertising here, and we aren’t going to provide any google assistance to the claim manager, so I’ve stripped the links out. Please don’t do that again.

      Reply
  5. p

    The correct spelling is Quadrant Brownswood

    Reply
    • NL

      Ooops. I’m blaming auto correct on my iPad, honest. Corrected and thanks.

      Reply
      • chief

        But only because it allows you to highlight that you have one – in any event I think that the Court of Appeal have got it wrong. Seem to remember that it was wrong on Casetracker.

        Reply
        • NL

          So I can blame the Court of Appeal? Better yet. Actually that might have been a cut and paste job. I’m completely (arguably anyway) vindicated!

        • chief

          To be honest, I tend to blame the Court of Appeal first, then ask questions later.

  6. P

    Same Mr. White involved in the possession case which took a rather interesting turn on April 14 when Quadrant Brownswood represented by Hugh Tomlinson QC and Adrian Carr were granted an adjournment after Lewison J allowed Mr. White to amend his defence

    Reply
  7. Pugilist

    and now for the rest of the story:
    Following Lewison J permission to allow Mr White to amend his defense the opposition pleaded for an adjournment (for a time uncertain as Lewison J put it) the whole mess was sorted by the brilliant representation of Mark Wannacott in Mexfield [Edited by NL. In short Quadrant Brownswood had to settle and drop the possession claim.]

    Reply

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