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Tis aw a muddle – costs edition


Morales v Enver (2016) QBD (Irwin J) 28/04/2016 (Not on Bailli – note of judgment on Lawtel)

Another case to file under ‘things not to do’.

Mr M had brought injunction for re-entry proceedings against a landlord and agents. Mr M was the tenant of a flat owned by the landlord. He stayed on after the end of a six month term. The Lawtel note describes this as a ‘licence agreement’ and adds that ‘it was unclear if Mr M was a tenant or a lodger’. Heaven knows how this was unclear, but there we are. Rent arrears apparently built up.

The landlord owned other flats in the same street. He engaged the agents to evict tenants of another flat. Possession proceedings were begun and, apparently, the court decided that that occupant was a lodger and no possession order was required. Accordingly a notice was fixed to the door of that property by the agent saying that the locks had been changed and the occupant had no right to continue to occupy.

So far, so straightforward (ish). But then the same notice appeared on Mr M’s door, on the agent’s headed paper but with the other occupant’s name crossed out and Mr M’s written above it. The locks had been changed.

Mr M found solicitors. They contacted the agents, who after being confused for a while about whether the solicitors were acting for the other occupant, denied having anything to do with the notice on Mr M’s door and referred them to the landlord.

Mr M (through his solicitors) for reasons also opaque, issued injunction for re-entry proceedings against the landlord and against the agents.

At an on-notice hearing, the landlord did not attend and was not represented, despite an order. The agent attended. The injunction was granted against the landlord, but not the agent. The court held (hardly surprisingly) that the agents should not have been made a party and ordered costs – but the order was against both Mr M and the landlord, unless the landlord filed evidence of a contractual relationship with the agents within 7 days. The landlord didn’t.

The landlord then apparently appealed the costs order, on the basis that

  • he had not misled any party as to the facts, in particular as to the agent’s involvement
  • he had not joined the agent as a party, so he should not have to pay its costs.

The agent contested the appeal, arguing that the landlord had been in breach of the order requiring him to attend court, which justified the costs order.

The High Court held:

An appeal of a costs order could only succeed if the costs order was wrong (I presume on the usual basis of outside the Judge’s discretion as wrong in law or a wholly unreasonable conclusion on the facts).

Here Mr M should not have joined the agents as a party. But the landlord’s failings in the case had also caused the agents to incur costs. On that basis, the first instance Judge’s conclusion on costs had been reasonable.


A mess – an everyday mess, perhaps, but a mess nonetheless. Mr M (or his solicitors) should not have brought the injunction proceedings against the agents in any event. But the landlord really brought the rest on himself by deliberately not taking part in those proceedings, then trying to appeal a costs award (never really a great idea) to the High Court (on what must have been limited costs against him).

So, lessons for everyone. Except those of us puzzled as to how any of these occupants were lodgers, but that, I suspect, will remain lost in the gaps of the lawtel note.


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.


  1. Ben Reeve-Lewis

    As you say Giles, an ‘Everyday’ mess. One that TROs get dragged into 24/7 and I have to say I dont share your scepticism over the confusion about whether or not M was a lodger. The smoke screens that go on about whether a landlord is actually resident is a regular knot to untangle for TROs and advisers, occupiers often either have no idea or disagree with each other about whether or not a landlord actually lives there. Couple that with multiple addresses, landlord’s keeping their name on bills and all manner rof other shenanigans and it can often be a case of advisng the occupier of the legalities of both positions

  2. Glen @ APL

    Utterly bizarre, if you ask me. Was the ‘lodger’ definition ever clarified? Surely it’d be in the contract somewhere



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