The usual hat tip to ‘recent developments in housing law’ in Legal Action for this one, and also Mick O’Sullivan at Avon and Bristol Law Centre.
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.
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.