McCall v Abelesz and another

A civil action for harassment lies at a tenant’s suit for breach of a term of the tenancy, but not for breach of statutory obligation under section 30 (2) of the Rent Act 1965 This was an appeal by Mr Leonard McCall, of Claremont Road, Cricklewood, London, against a judgment of Judge Counsell at Willesden County Court on December 18 1974 awarding him only £75 on his claim against the respondents, Erno Abelesz and Jacob Ostreicher, trading as Riverside Property Services, for damages for harassment in breach of section 30 (2) of the Rent Act 1965. By a cross-notice, the respondents appealed against the award of any damages at all. Mr J P Singer (instructed by Alexander & Partners) appeared for the appellant. The first respondent appeared in person, and Mr H Carlisle (instructed by the Treasury Solicitor) as amicus curiae. Giving judgment, LORD DENNING said that Mr McCall, who came from the West Indies, became the tenant of a furnished room in 3 Claremont Road, Cricklewood, London, in March 1968. He had to put coins into meters for gas and electricity supplied by his landlords, who were in turn supplied by the gas and electricity boards. The defendants bought 3 Claremont Road in May 1973, and left everything to their manager, a Mr Arran. Mr McCall paid his rent of £3.50 a week regularly by post to the defendants. A few months later, the defendants got a bill for £435 for gas, most of it supplied before they bought the property. They did not pay the bill, and in October 1973 the gas board cut off the gas. In December 1973 the public health authorities drew the landlord’s attention to the condition of the house, and Mr Arran went to look at it for the first time. He found that in Mr McCall’s room the meters were intact and the money there, but in two other rooms the meter locks were broken and the money taken. The gas board refused to give the tenants a direct supply of gas, and in March 1974 the two other tenants left owing about £200 in rent which they never paid. About this time the electricity and water were also cut off. The landlords offered Mr McCall alternative accommodation in a different area and at a higher rent, but he refused it. The landlords finally had the gas, electricity and water restored, but Mr McCall took proceedings in the county court. It was suggested at the first hearing that his plea might be breach of contract, but after consideration his counsel pleaded it as damages for breach of section 30 (2) of the Rent Act 1965. The judge ruled that it was not a case for aggravated damages, and awarded £75. Mr McCall wanted more, and appealed; the landlords cross-appealed, maintaining that no civil claim lay under the section. Mr Singer, for Mr McCall, cited tort books which suggested that there was a civil remedy for harassment under section 30 (2). He said that there had been several cases in which county courts had awarded such damages, but in most of them the point had been assumed without argument. On the face of it, the section did not give rise to a civil remedy, but it was still open to the court, on an examination of the whole Act, to hold that there was a remedy in damages. An example was Groves v Lord Wimborne [1898] 2 QB 402; on the other hand, it was held that there was no remedy in damages in Cutler v Wandsworth Stadium Ltd [1949] AC 398. Lord du Parcq there suggested that Parliament should explicitly state whether it was intended that there should be a civil remedy or not in any particular case, and it appeared that section 30 (4) was intended to comply with Lord du Parcq’s suggestion. It only provided, however, that ‘nothing in this section shall be taken to prejudice any liability or remedy to which a person guilty of an offence thereunder may be subject in civil proceedings.’  In some statutes Parliament had stated that breach of a particular obligation should give rise to a civil remedy, but no statute had been found in which it was expressly stated that a criminal offence should not give rise to a civil remedy in damages. He (his Lordship) had come to the conclusion that there was no need for any new civil remedy for harassment, for which there was already a perfectly good civil action for damages. The tenant here could sue for breach of an implied term of the tenancy, and possibly also for breach of the covenant for quiet enjoyment. That covenant extended to any conduct of the landlord calculated to interfere with the tenant’s peace or comfort, including any mental upset or distress caused the tenant. On the evidence in the present case, he (his Lordship) doubted whether it was right to find the defendant landlords guilty of harassment under the section, and on this point he agreed with what Ormrod LJ was about to say. But it was enough to decide that the section did not give rise to a civil action for damages. There should be judgment for the landlords on the appeal and cross-appeal. Agreeing, ORMROD LJ added that in his view the tenant had failed to prove that the landlords withheld supplies with intent to cause him to give up the premises; there was only a drifting on their part. SHAW LJ agreed with both judgments, and an order was made in the terms proposed by Lord Denning.