31/10/2013

Don’t ignore the Court of Appeal

Or, ‘It wasn’t me, it was the bailiff’.

Choudhury v Garcia [2013] EWHC 3283 (QB) (June 2013) [Not on Bailii. We have transcript]

A rather unusual unlawful eviction case, this, involving as it does breaches  of Court of Appeal stays of warrant, and High Court appeals of judgment and damages where both parties were in person.

Mr G was the tenant of Mr C, since 2007, or 2008 in a ground floor room. In late 2009, Mr C apparently decided he wanted the room back. At this point, trouble began in the back garden. As the first instance judge found:

“Panels of the fence were removed. The neighbours started to bring rubbish and junk and garden debris into the garden, making it look unsightly and in particular blocking the light from his windows into his room, and at one stage, plainly from the photographs I have seen, a whole wardrobe was put in front of the glass window. Bits of cars, cushions, blanket, old bits of metal, old bits of chairs, cardboard, bird muck-splattered chairs, are all there to be seen from the photographs, and his landlord did nothing to stop it or help clear it. He plainly wanted Mr Garcia to leave.”

In June 2010, Mr C began possession proceedings, apparently on the ground that he was a resident landlord. Mr G denied that this was the case. However a possession order was made on that basis, with eviction due on 4 October 2011. Mr G appealed firstly to a CJ, the, when this was refused in August 2011, Mr G sought permission to appeal to the Court of Appeal. A stay was ordered, provided Mr G obtain a transcript, which he did. Permission on the papers was refused on 25 February 2012. Thereafter:

Two days prior to the decision of the single judge of the Court of Appeal, Mr Choudhury obtained a second appointment to evict Mr Garcia on 20 March 2012. However, the order of the Court of Appeal provided that:
“A stay of execution is in place that will remain in case the applicant wishes to exercise his right to renew his application. I am not encouraging him to do so as in my view it has no prospect of success. However, he must observe strictly the time limits for doing so.”

Mr G did indeed renew his application within 7 days. But Mr C did absolutely nothing to stop the eviction by Court bailiffs on 20 March 2012, and indeed it took place, when Mr G was not at home. On 23 March, Mr G applied to be re-instated and an order was duly made that Mr C should re-instate him and not interfere with his occupation without lawful court order.

Mr C did not do so. On 16 April 2012, Mr G applied for Mr C’s committal for failing to obey the order of 23 March, together with claims for unlawful eviction, and harassment by Mr C and the neighbours.

On 20 May, the Court of Appeal refused Mr G permission to appeal and removed the stay, ending Mr G’s right to stay in the property.

In July 2012, there was the hearing of Mr G’s committal application and claims for unlawful eviction and harassment. Mr C did not attend. The First instance Judge refused to make a committal order, or other sanction, instead finding that damages would be adequate to show court orders should not be ignored.

In the unlawful eviction action, the judge ordered Mr Choudhury to pay the following damages: special damages in the sum of £2,203; general damages in the sum of £7,000; exemplary damages in the sum of £5,000, and damages for harassment in the sum of £1,800. The judge found the landlord and the two neighbours to be equally responsible for the harassment and gave judgment against the three of them for that head of damages in the sum of £1,800.

Mr C sought to appeal both the finding of unlawful eviction and the specific damages awards. Mr C was refused permission to appeal the special damages and finding of unlawful eviction, the after being unsurprising as his argument was that he didn’t know there was a stay. This was clearly all kinds of hopeless on the facts, and the Court of Appeal refused to give permission to challenge the first instance findings of fact. Mr C was given permission to appeal on the amounts of the other damages. Mr G’s response actually argued for an increased damages award.

The basis taken on damages by the Judge below was as follows (worth quoting in full):

25. The approach […] in relation to general damages is set out in paragraph 36 of his judgment. He did not disagree with Mr Garcia, that the cases tended to give a range of values, by the week, for general inconvenience, as somewhere between £150 and £250 per day. However, whilst acknowledging that Mr Garcia was entitled to adopt the course he did, this resulted in him managing, “to string out the process of his eviction for two and a half years.” In these circumstances, Mr Garcia has, to an extent, brought this a little bit on his own shoulders. In those circumstances, the judge considered that a figure of £100 per day would be the right figure for 70 days, which comes to £7,000 for general damages.
26. As for exemplary damages, Mr Choudhury knew, at the very latest, on 23 March 2012, when the judge told him about the stay in the Court of Appeal, yet he chose to ignore the order. He has not provided a justification for doing so, albeit it may well be as the judge knew that his wife was unwell. In those circumstances, the judge awarded exemplary damages in the sum of £5,000.
27. For harassment up to eviction, Mr Garcia had to live for the best part of two and a half years, about 120 weeks, with rubbish in his garden. Adopting, “a pretty broad approach,” the judge asked himself:
“What rent should have been paid or would have been paid by somebody taking a property with a garden in that sort of state? Or, to put it another way, what reduction in rent should I allow because of these defects?”
The judge concluded that a £15 reduction would be an appropriate award for that harassment of 120 weeks, which makes £1,800.

Mr C argued that the general damages were too high where no ‘critical injury’ was suffered, as:

Further, this sum is incorrect because it includes compensation for non- attendance at exams that Mr Garcia himself was sure he would pass, whereas there is no proof whatsoever that he would have attended or that if he had attended that he would have passed the exams. Mr Choudhury considers that as Mr Garcia is the author of his own misfortune, the amount of £100 per day for 70 days is very unfair. Finally, he says that he believes that Mr Garcia should have taken measures to prevent the bailiff from evicting him.

On exemplary damages, Mr C argued that

an award of damages should not have been made in this case. He says that his actions were not malicious, violent, or fraudulent. He emphasises that he did not evict Mr Garcia, but the court bailiff did.

And lastly, on the harassment award, Mr C argued that it was nothing to do with him, but was a neighbour dispute.

Mr G argued that general damages should be increased to £14,000 and exemplary damage to £7,000 because, well, they should be. Also Mr C had not been given permission to appeal against the finding of harassment, just the damages.

Supperstone J, who I suspect reads neither Legal Action nor NL, had a bit of a problem with the law on unlawful eviction damages:

35. No authorities have been referred to in the judgment of Judge Powles, or in the decisions on permission to appeal, as to the appropriate level of damages in a case of this kind. Mr Garcia referred to two short summaries of cases which, in my view, turned very much (as indeed each case does) on their own facts. McGregor on Damages (18th edition 2009), notes at paragraph 34-063 that an exemplary award has been frequently combined with the aggravated damages and even the general damages in one global figure. It is then impossible to allocate as between the various elements of the award.
36. Whilst quite substantial damages are not unknown for unlawful eviction (see Mehta v Royal Bank of Scotland [1999] 3 EGLR 153), often the awards made in County Courts are for comparatively small sums and ill-reported.

Given that it was ‘plain’ that Mr G should have an award of both general and exemplary damages, based on the first instance findings of fact and considering the awards made, there was no basis to find that the first instance judge erred in law.

There was also no basis to find that the award for harassment for the 120 weeks at £15 per week should be interfered with. Mr C’s appeal dismissed and likewise Mr G’s cross appeal, if such it was, for an increased award.

Comment

A difficult call for Supperstone J in the absence of representation and regard to case law which is fairly well established at County Court and higher court level. But the firs instance Judge’s decision on general damages is in line with the usual figures.

The exemplary damages, on the other hand, are a mystery. As ever, exemplary damages are intended to be measure by the profit achieved (or intended to be achieved) through avoiding a legal duty. Usually in these cases, they reflect the cost of possession proceedings. (Eg Walsh v Shuangyan. Manchester County Court 14/01/2010 here). Was there a not unfamiliar confusion between exemplary and aggravated damages? No separate award for aggravated damages, which might seem to merited, and exemplary damages are not a ‘penalty’ for breaching a court order per se.

Then there is the harassment award. Since when has harassment been calculated in terms of notional reduction of rent? Granted the first instance Judge described this as broad brush, but a loss of amenity/loss of enjoyment of property approach is surely not appropriate to a personal, targeted statutory tort like harassment.

All in all, not helpful. While the damages in such cases will always be heavily fact dependent, the rational for the wards should be clear and, hopefully, consistent.

However, it is a clear reminder that evicting someoe while a warrant is stayed by the Court let alone a higher court, can be a fraught and ultimately costly business.

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.

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