As difficult as pulling teeth

Williamson v Khan. Birmingham County Court. Claim No: 3YS66585 (12 March 2015).

Disrepair claims against private landlords are often interesting. Not least because said landlords have a tendency to take ridiculous positions and stick with them to trial, even when represented. This case is a glorious example of that. (A full copy of the judgment can be downloaded here, if interested.)

Ms Williamson had been the assured shorthold tenant of Mr Adalat Khan since October 2002. She was evicted in April 2013 after Mr Adalat Khan brought a possession claim for rent arrears – of which more later on, including the money judgment for £1,237.75 involved.

Ms W subsequently brought a claim for disrepair (damages only, due to the eviction. It is worth noting that legal aid funding was granted pre LASPO. it would no longer be possible to get legal aid funding for such a case).

The property was a one bedroom flat on the ground floor of a detached house converted into 5 flats. The claimant’s case was that there had been disrepair throughout the tenancy:
i) No hot water between February 2004 – October 2007 and January 2011 – April 2013
ii) Inadequate and defective heating throughout the tenancy
iii) Rising and penetrating damp
iv) leaks from kitchen waste pipe, bathroom basin and defective rainwater goods
v) infestations of rats due to defects in the structure
vi) Perished and defective plasterwork
vii) Holes in floorboards
viii) External brickwork, rendering and boundary wall in disrepair
ix) External paving damaged
x) Drainage problems resulting in offensive odours in the property.

This was largely supported by an expert report from 8 March 2013 and photographs taken by Ms W’s solicitor at the time.

Much of the case rested on the Claimant’s evidence. This can be tricky (I am still smarting from a recent trial, even though successful in the end), and here the Defendant’s approach was to attack the Claimant in every way possible.

Ms W was open that she suffered from poor mental health, with bi-polar disorder, depression, agoraphobia, extreme anxiety and insomnia. She had had a heroin addiction and remained on a prescribed substitute.

The Defendant’s case was basically that there was no disrepair, or if there was he wasn’t told about it, except on two occasions when works were done in a couple of days. The boundary wall and paving weren’t covered by section 11 Landlord and Tenant Act 1985. Any other defects had been caused by the Claimant – she had failed to pay gas and electric bills because of her drug habit, and this caused condensation. He further alleged that the Claimant hadn’t contacted him because other tenants had complained about her behaviour and her visitors, who had also caused damage to the property.

The Defendant also counterclaimed for rent arrears of £4293.52 and bailiff’s fees of £210, over and above the arrears in the previous money judgment.

The trouble for the Defendant was that he could not substantiate any of this (apart from the other troubles, which we’ll come on to).

The Defendant alleged that the original rent was £89.50 pw (not £89 as asserted by the Claimant) and that on 1 October 2008, the rent rose to £110 pw, which the Claimant denied. But the Defendant could produce absolutely no paperwork about this at all, apart from a retrospective rent schedule. An HB award of full rent of £89 pw was the only real record. As the court found

“Even after extensive cross examination of the point it was clear that not only did the Defendant have no idea what sums he alleged were outstanding but neither did both counsel or the Court. Despite repeated efforts to understand the Defendant’s case on the point I was, even by the end of the case, still unclear as to how he alleged he had calculated the alleged arrears. Indeed, by the end of the case both the Defendant and his own counsel accepted that they did not understand how the Defendant’s counterclaim had been calculated”. In fact, the Defendant admitted he couldn’t even be certain how the sum of arrears in the judgment debt had been calculated.”

It should not be a surprise after that that the counterclaim failed entirely. But the problems did not end there for Mr Khan. The assessment of the reliability of witness evidence was clearly going to be key to the case. This was not least because while the Claimant had permission to rely on her expert evidence, the Defendant had done nothing in that regard until applying shortly before trial to rely on an expert report obtained a whole year before. That application had been refused.

Mr Khan’s credibility went out of the window when it became clear that he was lying about the number of properties he owned, which was between 71-81, not the 25 he stated in evidence. He also lied about leaving the Midland Landlord Accreditation Scheme, when he had actually been expelled. He then went on to say he ‘couldn’t recall’ being prosecuted in relation to any of his properties, but had to accept that he had been, twice, for failure to provide fire safety precautions and for failing to conduct gas safety checks.

Mr Khan asserted that his lack of documentary evidence about, well, everything, was because he had lost his files, and the lack of any receipts from workmen was because he didn’t bother to set them against tax. The court did not believe this.

Mr Khan made a last minute – on the first day of trial – application to amend to plead limitation. This despite having had representation, and the claim being some 17 months old. This application was refused, the Defendant ‘having failed to discharge the heavy onus upon him to justify the lateness of the application to amend’.

The Court accepted the Claimant’s evidence in whole, apparently particularly impressed by her returning from a lunch adjournment to voluntarily correct what she had said immediately before the break. She was ‘persuasive, plausible and truthful’.

On the other hand

“As to the Defendant’s evidence, I found him to be a thoroughly unimpressive witness. he was evasive in his answers. he often pretended not to understand even the most basic questions and was extremely reluctant to make any concession on any point. Even when confronted with incontrovertible evidence such as the extent of his property portfolio, his convictions, the notice by the Health and Safety Executive in respect of his failings as a landlord and his expulsion from the Midland Landlord Accreditation Scheme he would repeatedly claim he did not know or had forgotten and only agreed after intensive and thorough cross examination. Obtaining a straight and honest answer by the Defendant was, sadly, as difficult as pulling teeth”“His evidence was unconvincing, implausible and untruthful. I have no hesitation in reaching the view that the Defendant not only gave a false account of events but did so quite deliberately with the clear intention of deceiving the Court.”

“Further, it is clear he sought to challenge the truthful account of the Claimant, who remains by any account vulnerable, by a vicious and sustained attack on her character”.

So, the Claimant’s claim upheld in full, including the outside wall and paving – under section 11(1A) L&TA 1985.

On damages, a diminution of rent approach was used, as per Shine v English Churches, for a period of 10.5 years. The award was 80% of rent.

Total damages, £39,093.60, plus the 10% Simmons v Castle uplift, giving a total of £43,002.96.

Costs to the Claimant at the standard rate.

About Giles Peaker

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, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Disrepair, Housing law - All and tagged .

5 Comments

  1. It’s not right to rejoice in other people’s troubles (and I’m not), but the landlord was proven clearly wrong and also a liar. It is however right to be glad at a claimant getting some justice,
    Thank you for the report

  2. What a satisfying read about the type of senario we hear about all too often. What a shame though that legal aid is no longer available for such cases.

  3. Pingback: As difficult as pulling teeth – Nearly Legal | Current Awareness

  4. An excellent result, but this type of case will more than lightly be a thing of the past due to lack of legal aid for further cases.

  5. Pingback: Ben Reeve Lewis Friday Newsround #203

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