No going back

Regency (UK) Ltd v (1) Hussein Ali Hadi Albu-Swalin (2) Heartland Property Ltd (2019) QBD (Chamberlain J) 18/11/2019 (Note of extempore judgment on Lawtel)

Regency had let flats to Heartland on the basis that Heartland would sublet to occupiers. Heartland sublet a flat to Mr Albu-Swalin in 2015. Mr A-S reported defects to the condition of the property. Heartland then served a ‘notice to quit’, which was not effective as a s.21, as it did not give two months notice. Mr A-S did not leave. The locks to the flat were then changed, excluding Mr A-S and his son. Most of Mr A-S’ belongings were not recovered.

Mr A-S brought a claim for unlawful eviction against both Heartland and Regency. At trial, Regency’s director did not attend the first day, although Regency was represented by counsel. During closing submissions, Regency, on advice from counsel, conceded that it had unlawfully evicted Mr A-S.

At first instance, the Judge awarded:

General damages at £150 per day for 60 days, that being the notice period that should have been given by a s.21 notice.
£5,000 in special damages for belongings never recovered.
Exemplary damages of £4,000 as the eviction was a criminal offence where Regency had sought to obtain a better profit.
Aggravated damages of £1,000, there had been no violence, but no warning and no opportunity for Mr A-S to collect his possessions.
(There was also an award of £5,200 on the poor condition of the flat and an un-returned deposit. This was not subject to appeal.)

Regency changed legal representation and appealed on grounds that:
i) It had been given negligent advice by counsel in making the concession that it had unlawfully evicted Mr A-S and should be allowed to withdraw the concession;
ii) The Judge had erred in not applying s.27 (and s.28) Housing Act 1988;
iii) Damages were too high and aggravated and exemplary damages should not have been awarded.

On i) it was not enough to assert that previous representation was incompetent, unless also privilege had been waived and previous legal representatives had had an opportunity to explain their position to the court, following Devon & Cornwall Autistic Community Trust (t/a Spectrum) v Cornwall CC (2015) EWHC 129 (QB). In the present case, the concession had meant that the Judge had not had to make findings of fact, the appeal court could not be expected to approach the matter differently unless the case could be shown to be exceptional. There was no evidence presented that the advice on the concession was wrong, and Regency had not waived privilege. Regency’s director had not even been present on the first day, so could not comment on that day’s evidence. The ground failed.

On ii) s.27 and 28 Housing Act 1988 – these sections provided a statutory remedy for unlawful eviction, but s.27(5) meant that an occupier was not prevented from enforcing any other liability in respect of a loss of right to occupy, subject to double recovery being ruled out. Mr A-S had not pleaded s.27, and s.27(5) meant he was not ruled out from claiming under the common law for a remedy for unlawful eviction.

on iii) Damages. The Judge had been entitled to take a 60 day period and the daily figure of £150. ON special damages, Regency had not put forward any cogent reason to dispute the Judge’s broad brush approach, or the award of £5,000, significantly lower than what was claimed.

On exemplary damages, the £4,000 figure was in line with the guideline cases. There was no other explanation for the eviction than financial reasons.

There was no reason to dispute the aggravated damages award of £1,000.

Appeal dismissed. As this was a rolled up permission and appeal hearing, Mr A-S was awarded his costs under CPR PD 52B 8.1.

Comment

Well… blaming your lawyers is never going to work unless you can show that your lawyers were to blame. Without waiving privilege, there is no way for the court to decide whether the advice was bad or not. Otherwise it just looks like ‘we lost, so our lawyers are to blame’.

On the general damages issue,  I long for proper clarity on this. We had the Court of Appeal in Smith v Khan (2018) EWCA Civ 1137 hold that damages run “throughout the period during which the claimant’s right to possession subsists”. But in this case, the daily rate was awarded for the two months of what should have been a s.21 notice. Now a s.21 notice does not end a tenant’s right to possession. We have House of Lords authority on that. So, why 60 days? Why not until the tenant had obtained comparable accommodation, or the reasonable timescale for possession proceedings and a warrant?

I am also not entirely sure on the ‘common law remedy’ for unlawful eviction. Assured shorthold tenancies are excluded from s.3 of the Protection from Eviction Act 1977 by reason of section 8(1)(e), which leaves, as statutory protection s.27. If the eviction is unlawful for failure to comply with s.21 HA 1988 etc, then common law notice provisions don’t apply, so I am having difficulty with the ‘common law remedy’. I am interested in other’s views. (Update 25 Nov – I was clearly having a tired Sunday evening moment. Common law remedies for breach of contract and in tort would be claimable – eg breach of quiet enjoyment, trespass to goods etc.)

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 +.
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