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Unlawful eviction and harassment
07/03/2011

Unlawful eviction quantum – assault and expulsion

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.

Comment
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.

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.

5 Comments

  1. Westengland

    A side issue:

    “The Covenant For Quiet Enjoyment” is referred to at line 24 – any thoughts on its meaning in current theory and practice?

    Reply
    • NL

      Lots. You’ll have to be more precise in your question.

      Reply
    • Diana

      I’m guessing it involves not being physically assaulted by two men?

      Reply
  2. Westengland

    I was a private tenant and I am now a public (note “public”, not “social”) tenant. Having experienced Letting Agent landlordism I am now a tenant of a Housing Association that appears to allow its tenants (the “active/assertive/affirmative/aggressive” ones, as ever) potentially a lot of involvement in policy (to the point of being tenant-landlords, in effect).

    Apart from general Tenant and Landlord Law (note word order) as it applies to me and tenants and landlords, I am interested in CFQE as a legal idea and how it can be used by tenants to protect their interests (and to be fair, could it be said that landlords have a right to quiet enjoyment of their letting?).

    I am interested enough in the subjects (housing law and CFQE) to have the standard text books and I am developing a blog on tenant and landlord issues called “The Covenant For Quiet Enjoyment” (not open yet because of my health – much of which relates to my housing history).

    It follows that I could say a lot (as a layman) but a blog comment isn’t really appropriate; I shall put my email address through the New Posts Subscription if NLers want to contact me.

    Reply
    • NL

      Ah. I see. I have to say I don’t think the covenant is going to stretch to cover the ground that I suspect you want it to, but let me know when your blog is up, and I’ll certainly read it with interest. The contact email is on the about page.

      By the way, as an RSL tenant, you are a public tenant to a certain extent, but only because of the Court of Appeal decision in Weaver v L&Q. The Supreme Court may yet take a different view…

      Reply

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