A couple of County Court judgments – by HHJ Luba KC, as a circuit judge. Buckle up for a bumpy ride through the all too familiar county court landscape of erratic pleadings, lengthy delays and parties who rather mistakenly think that their own bluster and allegations will see them through, without supporting evidence or indeed logic. First, a possession claim for non-occupation of a secure tenancy as only or principle home, and then a possession claim that went badly wrong for a landlord facing a counter claim for deposit penalties, disrepair, harassment and unlawful eviction.
Royal Borough of Kingston Upon Thames v Khan & Anor (2023) EW Misc 7
If defending a possession claim for a formerly secure tenancy based upon non-occupation as only or primary residence, where the local authority landlord has credit records, car registration addresses, records of visits – announced and unannounced, witness evidence from a neighbour and an interview under caution record fro the partner you are living with, and you are defending on your own say so, with no other witness evidence, it is best if you are convincing and have explanations for everything. That was not the case here. From HHJ Jan Luba KC’s judgment, on the defendant’s evidence:
First, she was hopelessly unclear and contradictory about the circumstances in which she came to have bank accounts in her name with over £30,000 in them during periods for which she was claiming means-tested benefits. On one account, this was money belonging to unnamed young men to whom she was related (one since deceased) which she was simply “holding” in the bank for them. On another account, it was money belonging to Mr McNeill, given to her to finance the building works. Neither account appeared plausible. Both were contradicted by Mr McNeill’s account that she was funding the building works from her own savings (see below). I was satisfied the money was and is hers. Not least because her explanation of frequent drawings of large sums from her accounts in 2019/2020 was hopelessly muddled and she tendered in oral evidence an account that, in the words of her counsel in closing, “doesn’t make sense”. It made no sense because it was, in my judgment, a botched attempt to disguise the truth.
Second, she was wholly vague and unclear about the employment Rashad did or didn’t have despite the fact that, on her account, they had lived together since 2019, through the pandemic, and were still living together, cheek-by-jowl, in a tiny flat.
Third, she plainly sought to mislead officers, who thought they recognised her at 76 (see below), by refusing to engage with them.
Fourth, her account that she had met Mr McNeill in early 1987, bought a house jointly with him only some months later, had a child raised by him from birth to adulthood, but yet had not been in a close, intimate, or romantic relationship with him was not credible.
I need only add that:
(1) Ms Khan is prone to making outlandish allegations against others. Her first witness statement is replete with then. Not least of which is an allegation that police officers “ransacked” the front and back garden at 14c when looking for her at the flat;
(2) she is prone to being untruthful, as demonstrated: (i) on her own account – by the fact that she deliberately gave potential credit providers the address at 76 as ‘her’ address rather than 14c because the latter might uncover her poor credit rating; and (ii) by her false evidence to a Valuation Tribunal that she was not resident at 76 “and never had been” (p770 at ); and
(3) her explanation for not calling any evidence or securing any statements from Mr McNeill or her own son was wholly unconvincing.
It also did not help that Ms Khan also basely accused a neighbour who was to give evidence of running a brothel from his flat.
An Equality Act discrimination defence and counterclaim were not pressed strongly at trial and were rejected, there was no discrimination, direct or indirect. Possession order made for 14 days. Ms Khan and her son, the second defendant, who had not participated, found jointly liable for costs, where only Ms Khan had legal aid costs protection.
Tahir v Aghri & Anor (claim for possession of residential premises) (2023) EW Misc 2 (CC)
Another HHJ Luba KC judgment, this time in what started as a possession claim by a private landlord but went horribly wrong for him. The tenants defended and counterclaimed for deposit protection penalties, disrepair, harassment and unlawful eviction. The landlord, Philip Tahir, discontinued the possession claim, but the case proceeded on the tenant’s (variously amended) counterclaim and, oddly, the landlord’s apparent counterclaim to the counterclaim.
It might be an indication of how trial was to go that the landlord, now represented, started with an application to put in a fresh witness statement by the landlord apologising for a previous witness statement in which he had accused the tenant’s counsel of soliciting a bribe. On which more in a moment.
The tenants’ case was that Philip Tahir wanted to sell the flat. When they did not leave, he let the flat fall into disrepair, cut off services and eventually changed the locks and their possessions stolen or discarded.
Mr Tahir’s case was that this was all a conspiracy against him by the tenants. It was
he who was and is the victim of malicious allegations by the defendants. This arises, he claims, from his refusal to further support their applications relating to their immigration status and/or his refusal to co-operate with a scheme they had hatched to secure their own council flat elsewhere. His case is that it is the tenants themselves who behaved badly – by failing to pay rent, cutting off services, changing the locks and by threatening him with violence.
Mr Tahir’s evidence was not well received
Sadly, the evidence demonstrates a propensity on the part of Mr Tahir to make outlandish allegations. They have previously been directed at the conduct of not only the defendants but of others including his own earlier counsel, counsel for the defendants, and the single joint expert. Both those counsel were described in writing as having ‘cheated’ him and Mr Grigg was alleged to have sought a bribe. The expert was described as ‘unprofessional’ and ‘anti-landlord’. He was accused of ‘falsifying your report’ and of ‘dishonesty’. There was never any substance in any of those allegations and in his witness statement made at the trial Mr Tahir withdrew them, at least in respect of Mr Grigg, the defendants’ counsel.
At the heart of Mr Tahir’s account was a contention that he himself had been in occupation of part of the flat for a significant portion of the time that the defendants had been his tenants of their part of it. It was in those circumstances, he contended, that he had been present and directly experienced their misconduct and aggression towards him including violence and threats or attempts to kill him. The defendants said that he had never lived in the flat at any time during their occupation.
His account was that he was living at the flat because he and his wife had separated. I cannot accept the truth of that. It is inconsistent with his use of his family home address on various of the tenancy agreements from 2015 and in notices that he gave in 2018. It is likewise inconsistent with the language used in texts exchanged between the parties in 2017 and 2018 strongly suggesting he was living elsewhere and only coming to the flat occasionally, for example to collect the rent and pick up the utility bills addressed to him. The suggestion (that he was living in the flat) was not made by him in his witness statement of October 2018. And most significantly, he called no witness, whether a family member, relative or friend who could or would confirm that he had been living at the flat at any material time. It is perhaps therefore no surprise that he adduced no witness evidence from anyone who saw – or received a report from him of – the alleged criminal, illegal, violent behaviour of the defendants.
On the tenancy deposit, held the deposit of £800 was received in February 2015 (and again in May and August on further tenancies being granted) but not protected until November 2015, after yet a further grant of tenancy. Mr Tahir’s contentions that no deposit had been paid until November, and that the tenants were licensees were rejected. The deposit ordered to be returned, and 2 times the deposit penalty ordered for each of the February, May and August 2015 breaches, totalling £4800, as
Here the landlord was dealing with a young inexperienced couple with a vulnerable immigration status and poor English. He took their money in cash, giving no receipts, and retrieving and retaining their initial written agreement. He could produce no audited accounts dealing with the money he had and received. He was no amateur.
On a disrepair claim:
£500 for a leaking shower.
No damages for mould growth as not shown to be linked to disrepair (pre H(FFHH)A ).
No damages for failure to supply gas safety certificates, as not a contractual term.
No damages for boiler. No disrepair established, though the landlord may have swithced it off for 4 days. This is not disrepair.
Harassment and unlawful eviction – pleaded
in contract (breach of covenant for quiet enjoyment, non-derogation from grant and breach of other implied terms) and in tort (trespass to property, trespass to goods) and in the statutory tort of harassment contrary to the Protection from Harassment Act 1997. In my judgment, nothing would be served by compartmentalising it. If, as I have found, the claimant conducted a campaign to make their lives uncomfortable enough to drive them out, the particular routes to establishing such conduct as unlawful are largely immaterial.
The landlord’s activities included
the cutting-off of the internet service and the switching-off of the gas boiler. I am quite satisfied that the conduct also included, as alleged, frequent and unnecessary entry by the claimant and his workmen and other visitors to the flat and often without notice. I accept that this included his unwarranted access to the studio unit itself, including an occasion when Ms Colavizza was asleep in bed. To further his sale and refurbishment plans, the claimant needed to bring estate agents, workmen and others to the flat. I am satisfied that the defendants gave access when given reasonable notice, but when they declined – because in mid-June 2018 they were marking the religious celebration of Eid – the claimant took access anyway.
There was unnecessary installation of CCTV and reports by the landlord of the tenants to the police – none of which went any further. This was all directed to making the tenants leave.
Then in April 2019, Mr Tahir had the locks to the flat and the tenants’ studio changed.
When the defendants returned that evening, they could not secure access. They called the police and a locksmith who forced entry. They found that their personal belongings, including their clothes, had been removed. Their mattress had been taken and the bed frame broken. Some, but not all, of their belongings had been dumped outside. The dehumidifier in their room had been removed. Their storage units in the communal hallway had been broken into, the contents removed, and new locks fitted. Much of this is seen on video footage taken on the defendants’ mobile phones. To the extent that it is suggested that such video material was staged or fake, I reject that suggestion.
The claimant’s activities on 5 April had not been confined to the defendants’ own studio. He had removed all the fire extinguishers in the flat and disconnected and disabled the fire alarm. He had locked the remaining shared kitchen out of use.
With nowhere else to go, the defendants – having broken back in with the assistance of the locksmith – tried to continue living in the studio and the flat. They placed cardboard on the floor in lieu of a bed and slept on it in their bedding.
Mr Tahir tried again a week later, changing the locks, but was forced to give the tenants keys to newly installed locks by the police. But five days after that, he and several other men with him entered the flat and changed the locks again. The next day, the tenants got emergency temporary accommodation from the local authority.
Such conduct, as I have found took place, was both reprehensible and unlawful. I have no doubt that it was as unsettling and unpleasant in its effect as it was deliberate in its intent. It was designed to achieve the ousting of the defendants by unlawful rather than lawful means by doing whatever was necessary, however improper, to secure that end.
As a matter of law, the conduct constituted the statutory tort of harassment as well as trespass to property (by unauthorised, uninvited or forced entry to the studio flat) and trespass to goods (the removal and loss of personal belongings). The same conduct amounted to a repudiation of the tenancy (accepted by the departure of the tenants and return of keys) and breach of its terms as to quiet enjoyment.
By this judgment, the Court must compensate the defendants, so far as money can, for the loss they suffered. The defendants seek special damages, damages for personal injury, general damages, aggravated damages and exemplary damages.
For anxiety and emotional distress – £25,000
For personal injury – too remote to be recoverable (falling off a bike when posting keys back)
Loss of income – not made out on the evidence
Breach of quiet enjoyment – Accepted a separate from other heads and not double counting “they compensate for the fact that the defendants were paying for something they were not getting – a peaceful home with the enjoyment of all usual ancillary facilities.” Assessed as abate of rent for £880
Special damages – locksmith costs £777.60
Loss of use of the flat – not made out, as went from flat to temporary accommodation
Aggravated and exemplary damages – clearly made out, £5000 for each, £10,000 in total
Loss of belongings – a list and some receipts, assessed at £2000
Total – £38,657.60
(This and another post coming shortly do raise the issue of the possible heads of claim for unlawful eviction, how they should be pleaded and where things might go in view of LJ Lewison’s obiter comments here. In this case, I wonder about s.27 and s.28 Housing Act 1988, apparently not pursued.)