Grand v Gill [2011] EWCA Civ 554

At the risk of being mocked, or shunned, I must confess myself to be throughly excited. A Court of Appeal disrepair case! And on one of the great unknowns of disrepair liability to boot! Obviously, my wedding day 8 years ago counts as being more exciting, but that excepted… This is rarer than hen’s teeth, rarer even than a meaningful engagement with a consultation by the ConDems, so even if you don’t do disrepair cases, enjoy the scarcity value.

This was an appeal by the Claimant, the tenant Ms Grand, against the trial judgment awarding her £5,600 general damages for disrepair and breach of quiet enjoyment against the landlord, Mr Gill.

Ms Grand was the assured short hold tenant of the property, a second (top) floor flat in Hillingdon. It was a 2 bed and she lived there with her daughter. A 12 month AST began in November 2004 and from November 2005 the tenancy continued as a statutory periodic. The rent was £850 per month, with £715 per month HB (although nothing turns on that at all).

The tenancy agreement provided for nothing more than s.11 Landlord & Tenant Act 1985 repairing obligations.

The main issue with the flat was damp and mould, throughout the flat. It became so bad in the second bedroom that the daughter had to move into the living room.

There was water ingress, causally connected with the damp and mould, through the ceiling from a leaking roof above the flat and from defective guttering. However, Mr Gill was the lessee of the flat, the roog was outside the demise and the responsibility for the repair of the roof and gutter was found to lie with the head landlord.

In addition, the boiler was defective. It did not work at all for 207 days between Nov 2004 and Nov 2007, when it was finally replaced. The rest of the time, it provided a wholly inadequate level of heat, some 15C, in the flat.

The expert had also found defective plaster in two areas, to the external wall of the living room and the kitchen ceiling, both caused by the water penetration.

A double glazed window had lost one layer of glass and this had not been repaired.

Ms Grand brought a claim for disrepair in November 2006. At trial in May 2009, the Judge awarded £350 damages for breach of quiet enjoyment (a claim under the Protection from Harassment Act failed). On the disrepair, the judge held that liability for the roof and guttering did not fall on Mr Gill. He found that the damp and mould was principally an issue of condensation, which was a consequence of a design fault and for which Mr Gill was not liable under Quick v Taff Ely BC [1986] QB 809.

However, he also held that the lack of proper (or any) heating for the 3 years 2004 to 2007 had contributed to the damp and mould by increasing the incidence of cold surfaces leading to condensation. He also held that the missing pane to the double glazed window had made a “small” contribution for about a year.

Disrepair damages were assessed “following the approach” in Wallace v Manchester CC [1998] 3 EGLR 38, as follows:
£1200 pa for the 3 years of lack of adequate heating due to the boiler. (Apparently based on an award of £1100 pa in Islington v Spence July 2001 Legal Action 26 for inadequate heating. No Increase for inflation made at all.). £700 was deducted from this in respect of the 30 weeks covered by a separate award of £1750 for the period with no heating at all. So £2900 for defective heating for 2 years 22 weeks, and £1750 for no heating at all for 30 weeks.
“Full liability” for the damp and mould would have resulted in £2000 pa, but assessed on an exacerbation by the lack of heating and window of 10%, £600 awarded for the 3 years of the claim.

There was no award of interest, although the Particulars of Claim claimed interest.

Although the Circuit Judge noted the expert report required the replacement of an area of defective plaster in the living room, the judgment was silent on liability or damages for defective plaster.

We should note that Ms Grand was not represented at trial, while Mr Gill was represented by Counsel.

Ms Grand appealed. Initially, the grounds of appeal included the Judge’s failure to address her special damages claim of £343, but this was not pursued,

The grounds of appeal were:
i) the judge was wrong to award only 10% in respect if the damage caused by the damp, in that the application of Quick v Taff Ely was wrong, specifically in relation to defective plasterwork.
ii) the judge was wrong not to award interest on the general damages claim.

On i), Ms Grand, via Counsel Mr de Waal, acting pro Bono, argued that the expert report identified two areas of defective plasterwork requiring replacement, in the living room and the kitchen. Although these had been caused by the roof leaks, for which Mr Gill was not liable, the defective plaster was a lack of repair under s.11 L&T Act 1985 for which he was. The discount of 90% ignored Mr Gill’s 100% of liability for the defective plaster and its consequences.

However, this would require plaster to form part of the ‘structure’ under s.11 LTA. As any housing lawyer well knows, this has been a vexed topic. In Quick v Taff Ely, the defendant conceded plaster was part of the structure, so there was no argument on the point. Staves & Staves v Leeds CC (1991) 23 HLR 107 (Court of Appeal) also involved a similar concession. In Niazi Services Ltd v van der Loo [2004] 1 WLR 1254, the Court of Appeal was posed the question but declined to answer it.

There was, however, a decision on the point in Irvine v Moran (1992) 24 HLR 1 by Mr Recorder Thayne Forbes QC. he held that structure should be limited to ‘those essential elements of the dwelling house which are material to its overall construction ‘. Internal wall plaster was ‘in the nature of a decorative finish’ so not structural. The definition of ‘structure’ in Irvine v Moran was approved in Marlborough Park Services Lyd v Rowe [2006] EWCA Civ 436, but not the point on plaster.

Ms Grand argued that Irvine was wrong in principle. While plaster did not give the dwelling stability, it did contribute to its appearance and shape. The distinction was properly between decorations and fittings on the one hand and everything else making up the dwelling on the other.

The Court of Appeal was reluctant to decide the point but could not avoid it “as the Court of Appeal has been able to on previous occasions” (Lloyd LJ at 32). In Rimer LJ’s lead judgment, with which the others agreed:

For myself, whilst I would accept and adopt Mr Recorder Thayne Forbes’s observations as to the meaning of ‘the structure … of the dwellinghouse’ as providing for present purposes, as Neuberger LJ put it, a good working definition, I am respectfully unconvinced by his holding that the plaster finish to an internal wall or ceiling is to be regarded as in the nature of a decorative finish rather than as forming part of the ‘structure’. In the days when lath and plaster ceiling and internal partition walls were more common than now, the plaster was, I should have thought, an essential part of the creation and shaping of the ceiling or partition wall, which serve to give a dwellinghouse its essential appearance and shape. I would also regard plasterwork generally, including that applied to external walls, as being ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration can then be applied, rather than a decorative finish in itself. I would therefore hold that it is part of the ‘structure’. I would accordingly accept that the wall and ceiling plaster in Ms Grand’s flat formed part of the ‘structure’ of the flat for the repair of which Mr Gill was responsible. [para 25]

It followed that Mr Gill was liable for the defective plasterwork and the Judge should have addressed this in damages. While Ms Grand’s submissions that the whole of the 90% discount should be overturned were not accepted, full compensation for the two areas of defective plaster were ‘with a broad brush’ assessed at being £750 of the Judge’s notional £6000. Thus the 90% discount applied to the remaining £5250. In place of the £600 awarded by the Judge, £1275 was awarded, increasing overall damages from £5600 to £6275.

On ii) – the interest, the Judge should have made an award, as it was claimed. However the date from which interest would run was not the date of claim as contended for by Ms Grand, as damages continued to run from the date of claim for a further year in respect of the unrepaired boiler. It was not just to require Mr Gill to pay interest on damages relating to subsequent loss. Interest would run from November 2007 at the proposed rate of 2% to the trail judgment of 7 May 2009.

Appeal allowed and the final order varied in these terms.

Before I comment further, we should note the role of John de Waal of Hardwicke Chambers. Ms Grand clearly did well as a litigant in person at first instance, but Mr de Waal has brought a (right) decision on plaster out of the Court of Appeal where generations of housing lawyers have been unable to do so.

In addition, Mr de Waal quite properly asked for and was awarded pro Bono costs – assessed at £2500 – in favour of a charity, The Access to Justice Foundation. Good work.

Comment
This is excellent news, ending years of wrangling and poring over tenancy agreements for a clause incorporating an obligation to repair plasterwork.

The decision on interest is also a useful confirmation of that entitlement and one worth everyday utilisation.

But beyond the headline, undoubtedly welcome though it is, I wonder about the first instance decision in this case, in particular the main body of damages – the £4650 in respect of 3 years of defective or non existent heating. This was not at issue in the appeal, I should be clear.

The disrepair damages, as revised by the Court of Appeal, amounted to 19.4% (let’s say 20%) of rent for the 3 year period.

The main body of damages was apparently assessed by the Judge below on the basis of Wallace v Manchester (the “unofficial tariff” currently at £1438.04 to £3954.60 adjusted for inflation to April 2011) and the Spence case from 2001 (with no adjustment for inflation against that award). The trouble is that Wallace was in relation to a social/local authority tenancy and even those social rents have increased above the level of inflation.

To illustrate the problem in applying Wallace to private sector tenancies, the very top of the ‘unofficial tariff’ is about 38% of Ms Grand’s rent of £10,200 pa. The top of the Wallace scale would be in regard to an effectively uninhabitable property. Damages of 38% of rent in relation to an uninhabitable property are clearly inadequate.

I’d suggest that the Circuit Judge was wrong to take Wallace as a guideline, and that the approach in English Churches Housing Group v Shine [2004] EWCA Civ 434 would be preferable, that approach being a percentage award as a notional deduction from actual rent. The same approach was used in Niazi Services Ltd v van der Loo mentioned above. This approach makes sense both for private tenancies, but given current social rent levels, for social tenancies too. Wallace is, after all, an unofficial tariff. No such measure of damages was decided by the Court.