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15/03/2015

Rising Damp

Rigsby

There is reason for Rigsby to look worried in Uddin & Anor v LB Islington (2015) CA Civ Div 10/03/2015 [Lawtel note only so far.]

This was Islington’s appeal of a first instance decision awarding the tenants damages for breach of repairing obligations.

The property was a maisonette on the basement and ground floors of a converted Victorian house. Soon after the start of the tenancy, the tenants complained of rising damp, which went unremedied for, it appears, many years. Works in 2009 had not prevented the problem.  At first instance trial, the Judge held for the tenants, finding a defective damp proof course caused the rising damp and that there was a breach of s.11 repairing obligations.

Islington appealed, arguing variously:

(1) the judge had been wrong to rely on two 2004 surveyors’ reports included in the trial bundle;
(2) there was not sufficient evidence to support the judge’s finding that there had been a defective damp-proof course;
(3) the claim had been insufficiently pleaded;
(4) the judge had wrongly changed the date in his draft judgment from which damages were to run.

On the various procedural points:

The surveyors’ reports had been included in the trial bundle without dissent, so the reports were admissible under CPR PD 32 para 27 to prove the truth of their contents. Islington’s argument that the judge admitted the reports not as evidence of the truth of their contents but only as showing that the property had been inspected and reports had been made was dismissed.

On the Particulars, pleadings were not an end in themselves and it had been plain to Islington what the case was it had to meet. Any doubt could have been addressed by Part 18 request.

On the change of date for the start of damages in the draft judgment, the Judge had received further submissions on that date in response to the draft, and could vary the judgment before it was handed down. Circumstances for this to happen did not have to be exceptional.

So, to the main issue.

It appears that Islington argued that the Judge at first instance was wrong to find that there was a defective damp proof course, as there was no damp proof course. From there, the argument appears to have been that this was an inherent defect.

The Lawtel note gives no detail of Islington’s argument, but my guess would be reliance on a line of cases such as Pembery v Lamdin [1940] 2 All ER 434, Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055, and Janet Reger International v Tiree [2006] EWHC 1743 (Ch), where an absence of deterioration (where there were absent or even defectively installed DPCs) meant a lack of liability for works to rectify damp penetration. As per Pembery, works would involve giving the tenant a different thing from that which was demised. It would be an improvement.

The Court of Appeal disagreed. If there was no DPC, resulting in rising damp, the first question was whether it had resulted in disrepair. The mere existence of damp was not disrepair. If there was damage or deterioration, such as defective plaster, the repairing obligation would be engaged and might extend to installing a DPC to prevent further damage (as per Elmcroft Developments Ltd v Tankersley-Sawyer (1984) 15 HLR 63). While Elmcroft concerned an ineffective DPC, the same principle applied where there was no DPC.

Thus an inherent defect could give rise to liability for breach of repairing obligation if it gave rise to damage, and may require remedying of the inherent defect as a part of the repairing obligation.

In the present case, there was some evidence of a post-Victorian DPC, which was clearly ineffective or had become so, but in any event, the Judge’s decision was that, whether or not there was a DPC, there was a duty to repair and the existence of the rising damp and the damage it had caused indicated a failure to repair by Islington.

Comment

If anyone has a copy of the actual Court of Appeal Judgment, I would be very keen to see it.

It is perhaps worth pointing out that in Janet Reger International, there was substantial damage caused by the water penetration, but only to parts covered by the tenant’s repairing obligation, not the landlord’s. There was no deterioration to the structure, or to the ineffective DPC. So, the damp caused by an absent DPC must cause damage which would itself fall under the landlord’s repairing obligation in order to give rise to liability for the inherent defect. This may be less straightforward to establish in leasehold cases than in tenant cases.

Nonetheless, this is welcome clarity from the Court of Appeal on the issue of absent DPCs. Certainly the inherent defect/improvement line has been argued by plenty of landlords to deny liability. It is now much more clearly a question of fact and degree as to whether installing a DPC is a reasonable or necessary step to remedy the disrepair. In principle, there certainly can be liability.

On the issue of whether damp in itself is disrepair, it is worth recalling this County Court case on saturated plaster as disrepair, which I understand was appealed and the appeal judgment due shortly.

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.

6 Comments

  1. Sarah Greenan

    See also Staves v Leeds City Council (1990) 23 HLR 107 – perished plaster caused by condensation dampness is disrepair.

    Reply
    • Giles Peaker

      Certainly, as confirmed by Grand v Gill. Saturated plaster (without any other damage, yet) may be trickier. Does it amount to deterioration from a previous condition, as per Post Office v Aquarius Properties?

      Reply
  2. Nicholas Nicol

    I was counsel for the Respondent/Claimant tenants in this case. The judgments of the Court of Appeal were ex tempore, given last Tuesday, so there is no transcript yet. Lewison LJ gave the judgment reported in Lawtel (Pitchford LJ gave an interesting judgment on the procedure on renewal of an application for permission to appeal but it has yet to be reported).
    The point you are so interested in was not a ground of appeal, it wasn’t even in the county court judgment, but was prompted by counsel for Islington attempting to make an (incorrect) proposition of law to support her other grounds of appeal.
    The fact is that this was a bog-standard disrepair case complicated by two aspects. Firstly, Islington claimed to have no records or documents of any kind whatsoever for extensive works (the centrepiece of the claim) carried out just one year prior to the issue of proceedings. Secondly, Islington’s external solicitors and counsel conducted the litigation either by not participating or responding to correspondence or, when they did participate, acting/reacting aggressively, raising every procedural point they could think of. There were no novel points of law involved. The case should have settled within a year. Instead, it has taken 5 years, 5 trial dates and a Court of Appeal judgment to finish it off.

    Reply
    • Giles Peaker

      Hi Nik. What an extraordinary and frustrating story. Still, at least it resulted in clarity from the Court of Appeal on an issue which is often raised by Defendants, even if accidentally. And I for one used in action in the closing day of a trial on the day the Lawtel note came out – the other side said rising damp, no DPC, improvement. So it has already proved useful ;-)

      Reply
  3. Nicholas Nicol

    Glad to hear it’s useful!

    Reply

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