Subletting and defamation – a novel approach

There is a queue of significant and serious cases waiting to be written up. For time and personal reasons, this may not happen for a while. Instead, here is an insignificant case of no wider importance, but possibly some entertainment value.

Howell v South London Church Fund & Southwark Diocesan Board of Finance (2017) QBD 27/07/2017 (Only available as a note of extempore decision on Lawtel)

Mr Howell had an assured shorthold tenancy from the South London Church Fund. The tenancy agreement, not unusually, prohibited sub-letting. Mr H accrued rent arrears and the SCLF began possession proceedings. At some point, the SCLF also became aware that Mr H was advertising the property for short term sublets (it is not clear of part or whole, but given the prohibition this does not matter) on a ‘holiday let’ website. (For reasons we’ll come back to below, this may not actually have been Airbnb, but you never know).

SCLF emailed the website, saying that it was the freeholder, that Mr H was a shorthold tenant, with sub-letting prohibited. The listing was removed, and, after the tenancy agreement was presented to the website, all bookings were cancelled.

At this point, Mr H, who is, it may be unnecessary to say,  acting in person, took would could be fairly described as an unusual course of action. He issued a defamation claim against SCLF, alleging the publication of false and defamatory statements which had caused him loss. He also applied for an order that SCLF must disclose the email sent to the website and, yet more ambitiously, an injunction restraining SCLF from communicating further with letting advertisers in respect of the property.

At the hearing of Mr H’s application, the request for disclosure of the email was granted  as it was essentially relevant to the claim and would aid the fair disposal of the dispute. Mr H had an arguable case that harm had been caused. It would cost the defendant very little to disclose the correspondence. So it was in the interests of justice.

However, the injunction application was less well received. Principally it was rejected on the basis that SCLF had a clear, strong and well arguable defence, that the words complained of were published without malice, under qualified privilege and were substantially true. The court would not restrain communications by an injunction unless the libel claim was likely to succeed at trial. That was not the case here.

Well. There is an interesting, if brave in the Yes Minister sense, response to a breach of tenancy agreement.

Mr H has managed a previous defamation claim over short let sub-letting (again, somewhat inevitably, in person). In Howell v AirBNB UK LTD (2015) EWHC 2396 (QB) (sadly not on Bailii, but on Lexis) Mr H had brought a defamation claim against Airbnb and sought an injunction:

(i) that the defendant must provide particulars of a complaint about him made to it by a guest known as Maria:

(ii) that the defendant must retract defamatory statements made by it to guests and others;

(iii) that the defendant be forbidden from blocking the claimant’s existing listings.

This arose because Airbnb had pulled Mr H’s listings after a complaint from a guest, or rather complaints by two guests, and Airbnb had emailed to people who had booked, pulling their booking because Mr H “has violated our terms of service and we felt it was the best interest of our community to remove him” Those complaints were not detailed in the judgment. Indeed Mr H was granted an order for disclosure of the complaints, which Airbnb had not provided to him. But the rest of the injunction he sought was rejected. Not least because Airbnb could summarily terminate listings for no reason at all under their contractual terms, but also because what Mr H sought would force Airbnb to continue his listings and provide him customers where:

In the present case Mr Howell has only been trading for a few weeks in this business. It appears that two separate and unconnected complaints of an unspecifiedly serious nature have been made against him in that very short time. I have also mentioned his admission that he indiscreetly allowed the female guest Maria to give him a massage; he told me that he thought she might in some way have been trying to persuade him to let her stay on longer without having to pay money. That appears to me to be at any rate a potential corroboration of the concerns Airbnb feels.

The property that Mr H was advertising on Airbnb in 2015 was a different one to the SCLF one. But the 2015 property was also let to him on an assured shorthold tenancy which, on the authority of a county court judgment, I can safely say also prohibited sub-letting of any form. Mr H was in breach of that tenancy’s terms when he brought that defamation claim against Airbnb. Perhaps sadly, that claim appears to have vanished, because nothing further has been reported since that 2015 interim decision. If anyone knows what happened, I’d be interested to hear. However, that now makes two defamation claims brought by Mr H arising from his sub-letting in breach of an assured shorthold tenancy agreement.

And yes, before anyone feels the need to point it out in the comments, this was the same Mr Howell who notably (and in person) attempted to appeal the divorce given on his wife’s (contested) petition (which was issued after he had gone back on an agreement to consent to a two year separation petition).

 

 

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, Housing law - All and tagged , , .

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