Al Hassani v Merrigan

Landlord and tenant — Rent Act 1977 and section 11 of Landlord and Tenant Act 1985 — Possession — Appeal by statutory tenant from decision of county court judge ordering possession, payment of rent and other charges and mesne profits, and dismissing tenant’s counterclaim under section 11 of 1985 Act — Rule in O’Brien v Robinson as to requirement of notice to landlord of want of repair under implied covenants — At the trial the proceedings took an unusual course — Although the defendant tenant’s counterclaim alleged breaches of the implied covenants under section 11, particulars were not provided before trial and the only evidence given at the trial related to a malfunction of the hot water and central heating system, which had in fact been cured after a short delay — The judge refused an application on behalf of the defendant to call the author of a surveyor’s report, mentioned in the defendant’s pleadings, which had been made available to the plaintiff shortly before the trial — As particulars of damage had not been supplied the judge decided to try the case on the footing that no special damage was alleged — In upholding the decision of the county court judge, the Court of Appeal held as follows — (1) A letter sent by the tenant’s solicitors did not constitute notice of defects within section 11 as it promised to submit estimates and state what was necessary in due course, so that the landlord could either do the work or have the cost deducted from the rent — (2) The judge was correct in refusing to admit the evidence of the surveyor’s report or to have its author called in support of the tenant’s counterclaim; if the counterclaim amounted to notice by its incorporation of the report, there was in fact no breach at that time — (3) The main question in the appeal was whether the judge erred in making a possession order; he could do so only if he were satisfied that in all the circumstances such an order was reasonable — Although a number of criticisms were made, it was apparent to the court that the judge had given consideration to all the relevant factors going to reasonableness — Appeal dismissed The following cases are referred to in this report. Griffin v Pillet [1926] 1 KB 17 O’Brien v Robinson [1973] AC 912; [1973] 2 WLR 393; [1973] 1 All ER 583; (1973 25 P&CR 239; [1973] EGD 296; (1973) 226 EG 297, HL This was an appeal by the tenant, Kevin Merrigan, from a decision of Judge Quentin Edwards QC, at Bloomsbury County Court, in favour of the landlord, Asaad Mohammed Al Hassani, in the latter’s proceedings for possession and other relief in respect of Flat 28, Leith Mansions, Grantully Road, London W9. Paul Staddon (instructed by Oliver O Fisher & Co) appeared on behalf of the appellant; Wayne Clark (instructed by Canter & Martin) represented the respondent. Giving judgment, PARKER LJ said: The defendant appeals from the order and judgment of His Honour Judge Quentin Edwards QC made in the Bloomsbury County Court on May 11 1987 whereby it was ordered (i) that the defendant deliver up possession of Flat 28, Leith Mansions, Grantully Road, London W9, within two months; (ii) that the defendant do pay the plaintiff the sum of £8,006.07 on the claim; (iii) that the defendant’s counterclaim be dismissed; (iv) that the defendant pay the plaintiff’s costs of claim and counterclaim on scale 3; and (v) that the defendant pay to the plaintiff by way of mesne profits £78.38 per week from May 9 1987 to delivery of possession. On July 8 1987 a stay of execution pending appeal was ordered on certain terms with which the defendant has complied. The present position is that the defendant is still in possession of the flat, which he occupies together with his wife and child, a boy aged 6, who unfortunately suffers from a form of cerebral palsy known as spastic diplegia. He has paid into court the full amount of the judgment and has also paid the mesne profits ordered in accordance with the judgment. It is necessary to set out the facts in some detail. At all material times, the plaintiff acted through an agent, a Mr Lake. On November 20 1983, Mr Lake, on behalf of the plaintiff and the defendant, entered into an agreement which, although described as a licence, operated as a tenancy agreement and created a protected tenancy. This is common ground. The weekly rental was £60. The circumstances in which this agreement came to be made are of importance. The flat had been let in July 1983 at a rental of £150 per week, but it had become vacant and the defendant’s mother, who lived nearby, informed him that it was available. He then asked Mr Lake if he could have it for a short period while moving from one flat to another. Mr Lake told him that the flat was in a very bad state so he was asking only £60. The defendant went in knowing it was out of repair and that repairs needed doing. The agreement was expressed to be operative from November 21 1983 to December 19 1983, but it was thereafter extended by agreement and the rent was increased to £78.38. The rent was duly paid until May 1985. It then ceased to be paid in the following circumstances. On April 15 Mr Lake gave what was described as formal notice to quit the premises on May 13. It is, however, common ground that it was ineffective as a notice. On May 13 Mr Lake visited the premises in order to inspect them but was refused entry. A cheque for the next rent was offered, but this was later refused. Thereafter, apart from two payments of £1,000 and £500, no rent was paid nor did the defendant pay for gas and electricity consumed. On August 8 1985 the plaintiff by his solicitors gave a valid notice to quit on September 9 1985, and thereafter the defendant became the statutory tenant of the premises. Between September 9 1985 and the commencement of proceedings for possession on January 28 1987, it is, for present purposes, only necessary to mention one event. On March 7 1986 the defendant’s solicitors wrote to the plaintiff’s solicitors a letter which included the following paragraph: There are considerable repairs which require immediate attention. Your client’s agent has been notified of these matters on countless occasions. The electricity needs immediate attention, the bath has been unusable for a considerable period of time, the pipes off the back of the washing machine have become clogged up. Our clients will obtain estimates from reputable firms and then submit them to your client. Your client will have the opportunity of either arranging for the firms to carry out the work himself or our clients will carry out the work and then deduct it from any rent due. The plaintiff’s claim as pleaded was a simple one for possession on the ground of non-payment of rent and for recovery of arrears together with sums in respect of gas, electricity and telephone use. There has been no dispute with respect to the arrears, gas or electricity claims. The claim in respect of the telephone was misconceived and rejected by the judge. On March 6 1987, the defendant delivered his defence and counterclaim. Much of the defence was misconceived, but it is necessary to set out certain parts thereof as follows: 5. (iii) The defendant will aver that he was entitled to withhold rental payments by way of set-off against the said BJ Lake (or if he be found to be the defendant’s landlord, the plaintiff) by reason of the matters which are the subject to the counterclaim herein below . . . 7. It is denied (in so far as it is averred) that the plaintiff is entitled to possession of the premises by reason of the matters alleged or otherwise. The defendant will contend that it is not reasonable for an order for possession to be made against him in the circumstances (and in particular without prejudice to the generality of the foregoing) the matters counterclaimed. The counterclaim was based on alleged breach of the covenants implied in the contract by section 11(1) of the Landlord and Tenant Act 1985 (formerly section 32 of the Housing Act 1961). It is common ground that the section was applicable. The covenants thereby implied are: (a)  to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes), (b) to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity and for sanitation (including basins, sinks, baths and sanitary conveniences, but not other fixtures, fittings and appliances for making use of the supply of water, gas or electricity, and (c) to keep in repair and proper94 working order the installations in the dwelling-house for space heating and heating water. The pleading then alleged particulars of breaches: PARTICULARS The plaintiff relies upon the report prepared by the Scrase Hewlitt partnership (surveyors and valuers) dated April 4 1986 which reveals defects of repair of the structure and exterior of the premises (including but without prejudice to the generality of the foregoing, dry rot and defective window sashes), and inadequate and defective installations for the supply of water heating and hot water have not worked for a very long time and sanitation (the WC is in a very poor condition). The report referred to was no doubt obtained by the defendant’s solicitors following the letter of March 7 1986, but it had not been sent to the plaintiff. The defendant averred that by the breaches pleaded, he had suffered damage: PARTICULARS OF DAMAGE (i) Loss of amenity at the rate of £… per week (ii) Reduction in the value to the plaintiff (and his family) of the premises caused by the landlord’s failure to perform the covenant (iii) General damages for vexation, anxiety and distress (iv) Miscellaneous costs. Full particulars will be provided by way of a Schedule before the trial of this action. Full particulars were not in fact provided before trial of the action. The plaintiff’s reply dated March 10 consisted, so far as now material, in a denial of every allegation in the defence and counterclaim and a plea that if the flat was in a state of disrepair it was due to the acts or defaults of the defendant, his servants or agents and or the defendant’s refusal to permit Mr Lake to have access for inspection and the carrying out of any work for which the defendant might be liable. Prior to delivery of his full defence, the defendant’s solicitors had on February 26 sent a short form of defence both to the court and to the plaintiff’s solicitors and had informed both that expert evidence would be called on behalf of the defendant and that, in consequence, the case might last at least half a day. They therefore asked that the hearing date be vacated. After some dispute, this was done by agreement and on March 13 the defendant’s solicitors sent the plaintiff’s solicitors a copy of the report referred to in the pleadings. Facilities for inspection had by then been requested by the plaintiff’s solicitors, but it was not until March 26, by which time the hearing had been fixed for May 11, that any facilities were offered. On that day, the defendant’s solicitors offered inspection at 11 am on April 8. Inspection finally took place on April 14, and on April 29 the plaintiff’s surveyors sent to his solicitors their comments on the report of April 4 and on the defence and counterclaim. When, on May 11, the action came on for hearing, proceedings took a somewhat unusual course. Both sides were represented by counsel. In opening the case for the plaintiff, counsel observed that the promised particulars of damage had not been given, and the judge indicated that he would try the case on the basis that no special damage was alleged. Mr Lake then gave evidence, in the course of which the judge pointed out that the only notice of defects pleaded by the defence was the report of April 4 1986 which had not been supplied until March of 1987. This was no doubt done in fairness to the defendant because it is established law that the obligation to repair under the implied covenants imposed by section 11 does not arise until the landlord has notice of the want of repair. See O’Brien v Robinson [1973] AC 912. The defendant thereupon applied for and was given leave to amend to allege: (i) Oral notice of hot water not working given in November 1984, but not rectified until April 1985. (ii) Notice by the solicitor’s letter of March 7 1986 already quoted and (iii) Service of the report of April 4 1986 in March 1987. The amendment having been made, Mr Lake gave evidence that he had been told of the hot water not working in March of 1985, that he had visited on April 15 1985, that he had found that the ball valve on a header tank was stuck, and that he had cured the defect by wiggling it up and down. According to the judge’s notice of evidence, he said nothing else in chief about any alleged lack of repairs and none of the matters mentioned in either the solicitor’s letter of March 7 1986 or the report of April 1986 were put to him in cross-examination. No further evidence was called for the plaintiff, which, no matters of disrepair having been put to Mr Lake other than the hot water, is not surprising. The defendant’s counsel then called first the defendant’s wife and then the defendant. Both spoke generally of the bad state of the premises but neither gave any evidence, according to the judge’s notes, of any want of repair which might fall within section 11 with the exception of the hot water and central heating, which had been dealt with, albeit after a small delay. In the course of the evidence, Mr Merrigan offered to pay £3,000 immediately and the balance within a month. Both stated that they had not paid the rent on the advice of solicitors. The defendant and his wife having given evidence, the defendant’s counsel sought to call the author of the report of April 4 1986, but was met with an objection by the plaintiff’s counsel which was upheld by the learned judge. It is the judge’s decision not to admit this evidence which is the core of the defendant’s appeal to this court. The objection was put on three grounds: (i) The evidence sought to be given was expert evidence which could be admitted only by leave of the court, since there had been no direction. See RSC, Ord 38 r 36. (ii) Leave should not be given, since no evidence in chief had been given and no want of repair had been put to Mr Lake in cross-examination. (iii) Additionally, no notice of want of repairs specified in the notice of repair had been given until after service of the counterclaim. The defendant’s counsel answered this with the contention that albeit leave was required, it ought to be given because: 1. The defendant’s advisers had been led to believe that no objection would be taken. 2. The counterclaim itself constituted notice. 3. (After a question by the judge as to what issue on the pleadings the proposed evidence would go), the evidence went to damages for loss of amenity from the date of the counterclaim, ie from March 6 1987 to May 11 1987. In his notes, the judge records that he declined to hear the evidence on the grounds (1) that it could not go to any issue he had to determine in the light of the fact that no notice was given until after the counterclaim and (2) ‘in any event the sequence of events’. In his judgment, the judge, in dealing with the counterclaim, said: The matter comes before this court with a substantial counterclaim. By amendment oral notice of defects to the hot water system between November 1984 and April 1985 and the letter of March 7 1986 have been pleaded. The pleading also relies upon a report served after the counterclaim had been made. The surveyor’s report cannot be noticed as it was served after the counterclaim, and even if I am wrong, it was not served until March 13 1987. The landlord’s surveyors went to visit in mid-April and reported on April 24 1987. I do not regard the letter of March 7 1986 as notice. By its very terms, it is not. The only point left on the counterclaim is the question of hot water between November 1984 and April 1985. I find it very difficult to see how the Merrigans could have gone all through the winter without hot water and not written a letter about it. It may be that some sort of oral complaint was made, but all that needed doing was for the ball valve in the header tank to be pushed down. I really do think that a man such as Mr Merrigan who works with cars could do a minor work of that kind and was under an obligation at common law to do it, and that he could and should have done it. I don’t think that a tenant can sit back and do nothing. If he had looked around, he could have discovered the cause. I do not think that the counterclaim sounds in damages. Accordingly, I give judgment for the plaintiff on the counterclaim. The first ground of appeal is that the judge erred in holding that the letter of March 7 1986 did not amount to notice. I can deal with this contention very shortly. I accept that a notice of want of repair need not specify the precise nature or degree of want of repair. See Griffin v Pillet [1926] 1 KB 17. If, however, one reads the relevant paragraph of the letter the only matters which could possibly come within the section 11 covenants are the electrical installation needing attention and the bath being unusable. As to these matters, if they were sufficient to put the plaintiff on inquiry, and I think they were, the plaintiff’s obligation would normally have been to attend and inspect and thereafter carry out such repairs as were necessary. The letter, however, expressly stated that the defendant would be ascertaining what was necessary and submit estimates. This being so, I am unable to see, as was the judge, that the letter was a notice sufficient to bring into being the plaintiff’s obligations under section 11. He was being specifically told that he would be told what was necessary in due course and that he could then either do it or have the cost deducted from rent. The next ground of appeal is that the evidence of the author of the report ought to have been admitted because service of the report amounted to notice of the matters complained of therein and ‘that the defendant is accordingly entitled to damages for breach of covenant for a period after service of the report (a short period of time to allow for inspection and repair of the premises) until the date of the hearing’. 95 This ground is, in my view, without substance. The report was not served until March 13 and, despite the provisions of section 11(6) of the Act, the plaintiff was not permitted to inspect until April 14. His surveyors reported within 10 days, which it is not suggested involved any unreasonable delay. At the most, therefore, there could only have been a breach if, on getting his surveyor’s report, the plaintiff should have carried out the repairs at some time prior to the trial on May 11. This was not, and could not in my view have been, seriously suggested. Moreover, so far as the counterclaim is concerned, I accept the contention that the matter crystallised at the date of service. If the counterclaim amounted to notice by its incorporation of the report, there was therefore no breach at that time. I accordingly conclude that the judge was right in refusing to admit the evidence in support of the counterclaim. There remains what in my view is the only real question on the appeal, namely whether the judge erred in making a possession order. He could do so only if he were satisfied that, in all the circumstances, such an order was reasonable. It is submitted on behalf of the appellant that even if the evidence were rightly excluded as to the counterclaim, evidence as to the current condition of the premises would have been relevant to the issue of reasonableness and should therefore have been admitted on that ground. It is also submitted that the judge (1) had failed to take into account or pay sufficient weight to: (i) the offer of payment made in evidence (ii) the medical condition of the defendant’s son (iii) the fact that rent had been withheld on legal advice (iv) a valid counterclaim; (2) had considered only whether it was reasonable ‘to expect the landlord to put up with the tenant’ instead of ‘all the circumstances’. As to (1)(iv) above, it follows from what I have already said that this point must fail. As to (1)(ii), the learned judge specifically mentioned the child’s condition and took it into account. I cannot say that he did so insufficiently. He did not, it is true, mention the offer of payment made at the trial, but he was not bound to do so. He was entitled to, and no doubt did, regard it as being without significance in view of its lateness. There is, however, some force in the submissions that: (1) he did not pay any regard to the fact that rent had been withheld on legal advice; (2) he appeared to regard the test as being whether it was reasonable to require the landlord to put up with a tenant such as the defendant, and (3) evidence as to the condition must have been relevant on the issue of reasonableness and was part of all the circumstances to be taken into consideration. I deal with these points in turn. As to legal advice, it appears from the evidence that the defendant’s solicitors took the view in March 1986 that if the plaintiff did not carry out repairs the defendant could do them and deduct the cost from the rent. There is, however, no evidence that they were advised not to pay gas and electricity bills or that they were advised that there was any basis for withholding rent amounting to many times more than could conceivably be justified on the ground of any non-repair of which they were entitled to complain. In these circumstances, the failure to mention legal advice or regard it as of significance was, in my view, justified. As to the contention that the judge applied the wrong test, I reject it because it is apparent from the judgment that the judge considered all the factors going to reasonableness. He plainly did not regard the plaintiff’s position only. There is finally the matter of the excluded evidence. In the light of what the judge described as the sequence of events, I consider the exclusion was justified. The premises were taken at a low rent specifically because they were in a bad state of repair. Although initially taken for two months, the defendant lived in them until 1985 without, on the evidence, any material complaint until the hot water incident in 1984-85. Thereafter, there was no complaint until the solicitor’s letter of March 1986, and that was not pursued in any way. Had the evidence been admitted, it could not in my view have affected the matter in the slightest. Like the learned judge, I have great sympathy with the small boy, but I do not consider that the judge erred in excluding the evidence or in any way in which he dealt with the question of possession. I should perhaps add that I have not overlooked arguments which were addressed to us that it was not necessary to plead notice or knowledge or that knowledge of want of repair, albeit no notice had been given by the tenant, was sufficient to give rise to the obligation to repair. I am prepared to accept, without deciding, that both contentions are correct, but neither avails the defendant. Apart from the hot water incident, there was no evidence of knowledge of want of repair falling within section 11 and the absence of necessity to plead notice or knowledge was in the circumstances of the case irrelevant. I would dismiss this appeal, but we should, I consider, hear argument on the question of the time which should be allowed to the defendant before the possession order can be enforced. SIR GEORGE WALLER agreed and did not add anything. The appeal was dismissed and possession ordered on agreed terms as to enforcement. Directions were given as to payment of mesne profits. The award of costs below was allowed to stand and an order nisi against the Law Society was made in respect of the costs of appeal.