Brem v Murray & Marchant (2022) EWHC 1479 (QB)
An appeal judgment from a first instance judgment on a claim for unlawful eviction, which deals with the landlord’s liability for the unlawful eviction that had taken place.
Mr Brem ran a hairdressing salon. The landlord of the flat above the salon, Mr Marchant, had ‘an agreement’ with Mr Brem allowing Mr Brem to make some use of the flat. Ms Murray was an employee of Mr Brem’s. In 2016, Mr B gave Ms Murray permission to live in a room in the flat. Mr Marchant had agreed Mr B could do so. Ms Murray paid rent to Mr B, who paid a rent to Mr Marchant.
The flat was in a poor and dangerous condition. In January 2017, Ms Murray instructed solicitors who sent a letter of claim to Mr B and Mr Marchant.
Mr Marchant’s response to the notice was that he ‘went “ballistic”’, and on 10th January 2017 he evicted Ms Murray by having the locks changed (it seems that Mr Brem was also locked out of the flat in the process). Some of her possessions were moved downstairs, and others were ‘trashed’, it would appear by Mr Marchant and three associates, after the locks were changed. Mr Brem ‘stood by and allowed this to happen. He probably protested, but was bullied into submission’.
It was not until a fortnight later, on 25th January 2017, that Ms Murray was allowed back into her room. By then it was uninhabitable and she moved elsewhere. In that time, Mr Marchant had ignored two injunction orders to give re-entry, as had Mr Brem, though he stated he did not have a key to the flat to be able to do so.
Ms Murray brought a claim in unlawful eviction against Mr Marchant and Mr Brem for breach of section 3 Protection from Eviction Act 1977 and for breach of orders. The pleaded claim was for “damages to be determined by the Honourable Court under the common law provisions and pursuant to sections 27 and 28 Housing Act 1988”.
The first instance court awarded special damages of £19,510 in special damages, jointly and severally against Mr B and Mr Marchant, stating
It will be paid by both defendants jointly and severally. The first defendant, because he organised the removal and trashing; the second defendant, because he was in breach of his covenant for quiet enjoyment and ignored his legal obligations by siding with the first defendant, and allowing him into the premises, despite being entitled to exclude him.
The court refused to award damages under s.27 and 28 Housing Act 1988 on the basis that there was no evidence presented of the difference in value between the property as subject to the tenancy and without being subject to the tenancy (s.28), but went on to award common law ‘punitive and exemplary damages’ of £5000 apportioned as £4000 against Mr Marchant and £1000 against Mr Brem.
It is clear that the first defendant was the instigator of this unlawful eviction and should pay the greater part of this sum. I order the first defendant to pay £4,000 general damages and the second defendant to pay £1,000.
Ms Murrays costs were awarded on a joint and several basis against Mr Brem and Mr Marchant.
Mr Brem appealed. Mr Marchant, despite being on notice and served with appeal documents, played no part and did not attend the hearing.
Mr Brem argued that the sole basis for liability against him identified by the judge below was breach of quiet enjoyment. He argued that
the Judge was wrong to conclude on the facts found that Mr Brem was in breach of that duty. He relies on the decision of the Court of Appeal in Kenny v Preen [1962] 1 QB 499 as authority that the covenant in law for quiet enjoyment entitles the tenant to enjoy his lease against otherwise lawfulentry, eviction or interruption, but not against tortious entries, evictions or interruptions. The tenant has other remedies at common law against tortious acts by third parties.
It was Mr Marchant who had carried out the eviction, not Mr Brem, and while Mr B had not taken active steps to intervene, there was no positive duty to the tenant to do so and even if he had put himself in harm’s way, it would not have practically prevented the eviction.
Further, breach of quiet enjoyment was a contractual matter, not one giving rise to tortious liability.
The High Court held:
Breach of quiet enjoyment was not pleaded by Ms Murray, but that was the only basis for an award identified by the judge below.
And the only thing the Judge found Mr Brem had done to breach the covenant was stand by while others, who were not acting on his behalf or under the agreement between him and Ms Murray, evicted her.
There is no clear basis in those findings, by themselves, for a conclusion that Mr Brem was liable to Ms Murray for breach of covenant. The authorities on which Mr Clarke relies are clear – and it is well-settled law, not disputed in this appeal – that the covenant protects a tenant from intrusion and disturbance by her immediate landlord and those claiming under him. If others intrude, including a superior landlord, she has remedies in tort against them, most obviously for trespass. On the Judge’s findings, Mr Brem had not, either himself or by his agents or by anyone claiming title from him, effected Ms Murray’s eviction. Mr Marchant had done that, while Mr Brem stood by. The implied covenant does not import any positive obligation to stop others intruding, much less an absolute obligation regardless of the practicalities. So when the Judge said Mr Brem had ‘ignored his legal obligations’ by ‘allowing’ Mr Marchant into the premises, ‘despite being entitled to exclude him’ it is hard to know what he meant.
Nor could there be liability for Mr Brem under s.27-28 Housing Act 1988 as he had not unlawfully deprived Ms Murray of her occupation of the flat, nor “done acts likely to interfere with the peace or comfort of Ms Murray, or persistently withdrawn or withheld services reasonably required for her occupation of the premises as a residence”. He hadn’t done anything, or caused it to be done.
A suggestion that Mr Brem was plainly implicated in Mr Marchant’s actions was contrary to the first instance judge’s findings that he:
‘clearly had been bullied by the first defendant to support his account, but as cross-examination progressed, he gradually gave an account which had the ring of truth about it, especially: (1) that he rented the flat from the first defendant, (2) that he rented a room to the claimant (3) that when the first defendant was presented with the claimant’s solicitors’ letter, he, the first defendant, went ‘ballistic’ and evicted the claimant by changing the locks and putting three ‘heavies’ in to remove her belongings’.
The appeal was allowed.
I agree therefore with Mr Clarke that no proper basis is identified or explained in this decision for fixing Mr Brem with liability – either for breach of covenant or in tort. Nor does any such basis suggest itself, consistently with the facts as found. His appeal must therefore be allowed.
The effect of that is that the Order made by the Judge must be set aside to the extent that it (a) makes Mr Brem jointly and severally liable with Mr Marchant for the special damages awarded in Ms Murray’s favour; and (b) orders Mr Brem to pay Ms Murray £1,000 by way of general damages. Since that makes Mr Brem a successful defendant to Ms Murray’s claim, and no basis is suggested or appears for departing from the ‘general rule’ that costs follow the event, I also accept that the Order should be further set aside to the extent that (c) it makes Mr Brem jointly and severally liable with Mr Marchant for Ms Murray’s costs.
This meant that the full liability for special damages and the punitive/exemplary damages fell on Mr Marchant, as did the costs ordered.
My astonishment is reserved for the original trial judge finding Mr Brem culpable when they were illegal evicted themselves. Hey ho