Having realised a day late that the Section 21 validity flow chart needed updating to take into account the new 4 month notice period (and 8 month ‘use it or lose it’ period) for section 21 notices served on or after 1 June 2021 brought in by The Coronavirus Act 2020 (Residential Tenancies: Protection from Eviction) (Amendment) (England) (No. 2) Regulations 2021 (see notes), I’ve just done it. It only added a couple of boxes and an additional page sequence, taking the whole flowchart to 15 pages. The updated flowchart can be downloaded in pdf or Word format here.
Simply for my sanity in doing this, section 21 can’t be abolished soon enough, but I suspect there will need to be another change to the chart at the end of September 2021.
On to something else that might become only of historic interest before long – costs in Environmental Protection Act nuisance prosecutions.
Taylor & Anor v Burton (2021) EWHC 1454 (Admin)
This was an appeal by way of case stated from North Staffordshire Magistrates’ Court’s decision that there was damp at the tenant’s property such as to amount to a statutory nuisance at the time the information was laid, that the landlord and managing agents were the persons responsible for the nuisance, and although the nuisance had been abated by the trial hearing, the tenant should have costs of £29,079.80 to be paid £14,539.90 each by the landlord and the agent.
The landlord and agent appealed. There were two main issues.
The justices erred in law by failing to give adequate reasons for their decision. In particular:
a. the justices failed to give any reasons for rejecting the Appellants’ submissions that they were not the persons responsible for the existence of the nuisance due to the Respondent’s failure to respond to requests for access to the premises to carry out works of repair; and
b. the justices failed to give any reasons for rejecting the Appellants’ specific challenges to the amount of costs claimed by the Respondent.
And – linked:
The justices erred in law in concluding that, for the purposes of s.82(12) of the Environmental Protection Act 1990, the Appellants were the persons responsible for the existence of the nuisance at the material time in circumstances where there was unchallenged evidence that the Respondent had failed to respond to the Appellants’ requests for access to the premises to carry out works of repair.
This was dealt with briefly by the High Court. There had been contested witness evidence on both sides heard by the Court, and the landlord had argued extensively that they were not liable for the nuisance, blaming the tenant. The Mags cout not be said to hve overlooked the defence, instead it was rejected.
There was sufficient evidence before the Mags for them to conclude that the landlord had not done ‘all that is reasonable’ to abate the nuisance. On the sufficiency of reasons given for finding the landlord responsible, the High Court observes, a little tartly:
The Magistrates do not have to give a commentary on the evaluative exercise. The explanation of verdict in proceedings of a criminal nature may be discharged by a demonstration that the Magistrates have satisfied themselves as to the ingredients of liability (R oao McGowan v Brent Justices (2001) EWHC (Admin) 814). Where a disappointed litigant ‘cannot understand why they lost’, care is needed: that may signal uncertainty or obscurity as to basis, or it may signal vehement disagreement as to merits. Only the former is a proper symptom of legal error. The landlords may not find themselves able to acknowledge why the Magistrates preferred the evidence contrary to their defence, but that they did so is plain enough.
On the costs award, the landlord argued
The justices erred in law in their assessment of the amount of costs to be paid by the Appellants by failing to have regard to the proportionality of the costs incurred and to the specific matters challenged by the Appellants.
The tenant had sought costs of £34,412.60. The landlord had argued in the Mags that this “was disproportionate, relying on R oao Notting Hill Genesis v Camberwell Green Magistrates’ Court  EWHC 1423 (Admin). Specific issues were raised as to: the use of London lawyers and associated travel costs, including for an unnecessary site visit; the amount of hours and the grade of fee-earner, including in attendance at trial; the cost of a Newcastle-based expert.”
The Mags reduced the total to £29,079.80 noting that the travel and waiting at court expenses were excessive.
The High Court found that it was impossible to tell from the scant materials and comments from the Mags whether the Justices had put their minds to the proportionality of the costs. That in itself was sufficient concern to allow the appeal on this point.
If I have reached the point of guesswork, that is the point at which fairness requires another look. I am bound accordingly to conclude that the Magistrates erred at least to the extent of insufficiently articulating their decision, and that there is at least potential injustice in their perhaps too summary approach. It is important that the parties should have a basic understanding of how a sum is arrived at and some reassurance that they have been heard on the key issues.
The High Court added some comments on the nature of the costs assessment regime for s.82 EPA prosecutions:
The analogies drawn in the decided authorities, and recommended to me, with rules of court for assessing costs in both civil and criminal proceedings, are, however, just that: analogies. S.82(12) is drafted in terms which mandate Magistrates to order the payment of an amount of compensation, which in their view is reasonably sufficient in view of expenses properly incurred. While assistance may be gained from analogous concepts such as proportionality, and from the approach courts are familiar in taking to ensure that awards of costs are fair, it is important not to lose sight of the words of the statute. The Magistrates are properly engaged on an exercise in assessing reasonably sufficient compensation for expenses properly incurred. What ‘expenses’ have been ‘properly incurred in the proceedings’ is one aspect. But s.82(12) creates a distinctive entitlement, and the assessment of ‘reasonably sufficient compensation’ is a distinctive statutory duty, in a scheme in which procedural provision is made to help minimise the need for complainants to litigate at all. The wider statutory context remains important.
Appeal allowed on the costs point and case remitted to the Magistrates for costs consideration.
And finally, after the recent bumper pack of Rent Repayment Order cases, here by way of contrast is an example of an unsuccessful RRO application:
The application was for an unlicensed property that required a licence under a selective licensing scheme. The tenant claimed to have an AST of ’49B Springfield Road’ which only shared a hallway with ’49A’. The landlord admitted the property was not licensed, but said it did not have to be – there was only one property – 49 Springfield Road, and the applicant had shared it with her and her son.
The Tribunal was not satisfied with anyone’s evidence:
we did not find the Respondent’s or her husband’s responses in cross-examination particularly convincing, including the Respondent’s response regarding the locking of doors.
In addition, the living arrangements as described by the Respondent are rather unconventional to say the least, and it is strange that she and her family would have changed their plans so radically and so quickly simply on the strength of the Applicant having offered a lower rent so soon after the Property was advertised. We also note that the eviction notice dated 30th November 2019 referring to the agreement with the Applicant as a lodgers’ agreement was countersigned by Mr Ashfaq as witness, which is unusual and might suggest that it was created as a self-serving piece of evidence to bolster the Respondent’s claim that the Applicant was merely a lodger.
On the other hand, the AST agreement filed by the tenant was missing a page and several clauses, which, on the respondent’s copy were present and referred to the applicant as a lodger. The applicant had no explanation for the missing page/clauses. There was also no other witness evidence in support of the applicant. he page may have been missing from the agreement the tenant signed (and the respondent adding the relevant clauses later on), or it may have been removed before being being submitted to the Tribunal. There was no way to tell with certainty.
As a result, and without making any finding about about who was right, the Tribunal held:
Under section 43(1) of the 2016 Act, the tribunal may only make a rent repayment order if satisfied beyond reasonable doubt that the landlord has committed an offence. This is the criminal standard of proof, and it differs significantly from the civil standard of proof under which the tribunal only has to be satisfied on the balance of probabilities. Whilst we have not found the Respondent’s evidence or supporting witness statements particularly convincing, for the reasons listed above we also have concerns about the strength of the Applicant’s evidence. Therefore, taking all of the evidence in the round, we are not satisfied beyond reasonable doubt that the Respondent has committed an offence.
So, reminder if one were needed that the criminal standard of proof applies to RROs, and evidence that merely suggests something is ‘more likely than not’, or ‘on the balance of probabilities’ won’t, by itself, suffice.
(I do have one more RRO case to write up, but that has such a marvellous cast list, improbabilities and convolutions that it deserves its own post. And possibly a three part drama on BBC2. Any case where part of the landlord’s defence is a reasonable excuse of ‘I did not want to know about property law’ is to be treasured).