Davies v Peterson

Rent Act 1977, Cases in Schedule 15 — Tenant’s appeal against possession order and award on counterclaim for damages — Appellant was the tenant of a dwelling-house owned by the respondent (plaintiff below) — Respondent, a barrister, had a home in Sierre Leone, where he had a law practice — He had visited the United Kingdom every year for the last three years, staying a minimum of 3 to 4 or 5 weeks each time; he had been here for more than three months at the date of the county court action — He wished to obtain possession of the house in order to be able to stay in it — There had been a previous county court action for possession based on arrears of rent, resulting in a suspended order, but nothing had been done to execute it — In the present action possession was sought under Case 1 on the ground of arrears of rent, and alternatively under Cases 9 and 11 — The county court judge rejected the claims under Cases 1 and 9 (holding in regard to the latter that greater hardship would be caused by granting the order than by refusing to grant it) — He did, however, make a possession order under Case 11 and gave judgment for arrears of rent amounting to £4,084.13, less a set-off of £858.21 in respect of damages on the tenant’s counterclaim — The tenant in fact paid the balance of £3,225.92 before the appeal The landlord did not challenge the judge’s decision in regard to Case 9 and the issues before the Court of Appeal related to Case 11 and the tenant’s counterclaim for damages — As regards Case 11, it was accepted that the landlord had informed the tenant orally that he might want to recover possession of the house at the conclusion of the contractual tenancy; the judge had waived the need for a notice in writing under the ‘just and equitable’ provision in Case 11 In the Court of Appeal it was submitted on behalf of the tenant that the judge had not spelt out all the relevant circumstances before concluding that the landlord had satisfied the residence requirement of Case 11 — The judge had, however, found that the barrister genuinely wanted the house in order that he could stay there when visiting London, particularly in view of the fact that he had a daughter in London — Unless the judge’s finding was perverse, and there were no grounds for so deciding, the Court of Appeal could not interfere with it — As regards the tenant’s counterclaim, it was submitted that the judge had failed to itemise 15 or 16 items which were in dispute, in respect of which there was a claim for £413.31 — The Court of Appeal did not agree that this indicated an error on the part of the judge, as the inference was that he was not satisfied that the tenant had discharged the burden of proof in regard to them — The court was, however, concerned about an award of £250 in respect of discomfort, anxiety and inconvenience, due to disrepair and damp over a period of about 12 months, and decided to increase the amount to £1,000 — Kerr LJ referred to what he had said in Saunders v Edwards about unduly small awards under this head — Appeal against dispossession order dismissed, but appeal in regard to counterclaim allowed by the addition of £750, with consequential adjustment of set-off The following cases are referred to in this report. Naish v Curzon [1985] 1 EGLR 117; (1985) 273 EG 1221; 17 HLR 220, CA Saunders v Edwards [1987] 1 WLR 1116; [1987] 2 All ER 651, CA This was an appeal by the defendant tenant, Mrs Barbara Peterson, against orders made by Judge Lipfriend at Westminster County Court in regard to claims by the plaintiff landlord, Mr John Washington Davies, for possession of his dwelling-house at 12 Tottenhall Road, London N13, and arrears of rent, and in regard to a counterclaim for damages by the tenant. Miss Beverley Lang (instructed by Bindman & Partners) appeared on behalf of the appellant; Christopher Parker (instructed by Charles Russell, Williams) represented the respondent. Giving the first judgment at the invitation of Kerr LJ, RUSSELL LJ said: This is an appeal by the defendant/tenant from orders made by122 His Honour Judge Lipfriend sitting at Westminster County Court on February 19 last. The judge granted to the plaintiff, Mr John Washington Davies, possession of his dwelling-house tenanted by the defendant, Mrs Barbara Peterson, 12 Tottenhall Road, London N13. There has been a stay of execution of the order for possession pending this appeal. The learned judge also gave judgment for arrears of rent, which were very substantial; they amounted to no less than £4,084.13, although the rental of the premises was no more than £110 per month at the date of the hearing. Accordingly, in round terms those arrears extended over a period of about three years. The judge set off against that order in relation to arrears of rental the sum of £858.21, which he awarded to the defendant by way of damages on her counterclaim, leaving a balance in favour of the plaintiff of £3,225.92. We are told that since the hearing before the judge that sum has been paid by the defendant. The facts fall within a comparatively small compass so far as this appeal is concerned, although the documentation presented to the judge was very substantial and although we are told that the hearing occupied some three or four days. The dwelling-house was let by the plaintiff to the defendant on a letting evidenced by a letter dated in January 1976. Arrears quickly accrued, and in 1978 a case was heard before another county court judge at the instance of the plaintiff seeking possession of the premises on the ground of arrears of rent. A suspended order for possession was made by the judge on that occasion. Nothing was done to execute it and the arrears continued to accrue between then and the date when the matter came before His Honour Judge Lipfriend. In the particulars of claim before the latter judge possession was claimed on three grounds. I can dispose of two of them very readily. Possession was sought on the ground of arrears of rent; the judge considered that that ground was inappropriate for reasons upon which I need not digress. In the alternative possession was sought pursuant to Case 9, to be found in Schedule 15 to the Rent Act 1977, and in the further alternative pursuant to Case 11. The starting point, as referred to by the judge in his judgment, is section 98 of the 1977 Act. So far as it is material to this appeal, that section reads as follows: (1)  . . . a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either — (a) the court is satisfied that suitable alternative accommodation is available for the tenant . . . or (b) the circumstances are as specified in any of the Cases in Part I of Schedule 15 to this Act. Subsection (2) provides as follows: If, apart from subsection (1) above, the landlord would be entitled to recover possession of a dwelling-house which is for the time being let on or subject to a regulated tenancy, the court shall make an order for possession if the circumstances of the case are as specified in any of the Cases in Part II of Schedule 15. Case 9 under Part I of Schedule 15 is concerned with applications for possession where the dwelling-house is reasonably required by the landlord for occupation as a residence for himself. However, that Case is subject to the overriding proviso to be found in Part III, ‘Provisions Applicable to Case 9 . . .’, which reads as follows: A court shall not make an order for possession of a dwelling-house by reason only that the circumstances of the case fall within Case 9 in Part I of this Schedule if the court is satisfied that, having regard to all the circumstances of the case, including the question whether other accommodation is available for the landlord or the tenant, greater hardship would be caused by granting the order than by refusing to grant it. In his judgment the learned judge, having disposed of Case 1, considered the position under Case 9. He found under Case 9 that this plaintiff did require to occupy this dwelling-house himself, but he concluded, citing from p 7 of his judgment: So far as the question of greater hardship is concerned, I am satisfied that there would be a greater hardship on the tenant if I were to make an order for possession under Case 9 than there would be on the landlord if I were to refuse to do so and accordingly I do not make an order for possession under Case 9. There is no cross-appeal in this case and that finding properly remains undisturbed. The ground upon which the order for possession was made was under Case 11. That is to be distinguished from Case 9 in at least two respects. First, it is not necessary for the court to make a finding that the dwelling is reasonably required as a residence for the owner; second, there is no overriding proviso, as there is in Case 9, involving greater hardship. Case 11 is headed ‘Cases in which Court must order possession . . .’ and reads as follows (so far as material): Where a person (in this Case referred to as ‘the owner-occupier’) who let the dwelling house on a regulated tenancy . . . occupied it as his residence and — (a) not later than the relevant date the landlord gave notice in writing to the tenant that possession might be recovered under this Case, and . . . (c) the court is of the opinion that of the conditions set out in Part V of this Schedule one of those in paragraphs (a) and (c) to (f) is satisfied. — then the court shall make an order for possession — there is no discretion. Case 11 continues in these terms: If the court is of the opinion that, notwithstanding that the condition in paragraph (a) . . . above which related to the requirement that there should be a notice in writing to the tenant that possession might be required is not complied with, it is just and equitable to make an order for possession of the dwelling-house, the court may dispense with the requirements of either or both of those paragraphs, as the case may require. What happened in this case in relation to the requirement that there should be a notice in writing to the tenant is that when the matter was before the county court judge in 1976 there was a specific finding that this landlord had orally told the tenant that he might want to recover possession at the conclusion of the contractual tenancy. That finding was binding upon the parties when the matter came before Judge Lipfriend. To return to Case 11, it is necessary to look at the paragraphs giving the landlord the right to possession; they are to be found in Part V of Schedule 15. Para 2 of Part V reads: The conditions referred to in paragraph (c) in each of Cases 11 and 12 and in paragraph (e)(ii) of Case 20 are that — (a) the dwelling-house is required as a residence for the owner or any member of his family who resided with the owner when he last occupied the dwelling-house as a residence; . . . It is under that paragraph that the order here was made, the judge having found that the landlord had satisfied him that this dwelling-house was required by the plaintiff as a residence for himself. He rejected the proposition that the plaintiff required it as a residence for any member of his family, in particular his daughter, Miranda, who was a student living in London at the material time. The point taken here on behalf of the tenant by Miss Lang — and, if I may say so, it was taken with skill, clarity and economy of language — was that on the evidence the judge should not have found that this plaintiff required this house as a residence for himself. The plaintiff’s home is in Sierra Leone: he is a lawyer, is a member of Gray’s Inn and he has a law practice in Sierra Leone. He told the judge that over the years he had been a frequent visitor to this country. The finding of the judge on this aspect of the case is to be found on p 6 of his judgment. He said: In the case before me the plaintiff/landlord said he visited this country every year for the last three years; he came on holiday every summer. He is interested in his property and he wanted occupation of the house in order to stay in this country. He stays a minimum of 3 to 4 or 5 weeks when he comes; he has been here more than three months. If that be right, there is no doubt that the landlord in this case certainly came and stayed in this country for periods far longer than the periods that the landlord lived in this country in the case of Naish v Curzon. That was an authority to which we were referred by Miss Lang; it is reported in volume 17 of Housing Law Reports at p 220,* and it was a decision of this court. It is unnecessary to rehearse the facts of that case, because each of these cases, as is pointed out by the leading judgment of Oliver LJ, depends very much on its own facts. Oliver LJ, in the course of his judgment, cited a number of cases in which the courts have decided that tenants remained in occupation of controlled premises regarding them as a residence, even though the residence, in point of time, was not for a substantial period. For example, holiday homes occupied at weekends have been held to be protected. In this appeal, of course, the situation is reversed and we are concerned with whether this plaintiff, as a landlord, has established that the quality of his residence when he was seeking possession was such that he was entitled to possession pursuant to the Act. At the conclusion of his judgment in Naish v Curzon Oliver LJ said: 123 It seems to me that there is nothing in the Schedule which imposes any sort of requirement of permanence or lack of intermittency in the residence which is required by the landlord. The question is whether such residence was intended by this landlord, which is of course a question of fact and upon which the learned judge was entitled to form his own conclusion — as he did, accepting the respondent’s evidence in toto. For my part, it seems to me quite clear that the learned judge was entitled to take the view which he did. In my judgment, he was right in the conclusion at which he arrived on the evidence before him. I think the evidence was sufficient to establish the necessary requirement of residence for the landlord, albeit it was no doubt residence which was intermittent, or at times when the landlord was able to take advantage of it by reason of his presence here. *Editor’s note: Also reported at [1985] 1 EGLR 117; (1985) 273 EG 1221. Miss Lang criticises the finding of the learned judge by submitting that he did not, in terms in his judgment, spell out all the circumstances of this case before arriving at the conclusion that the landlord had satisfied the test required by the provisions to which I have made reference. There was, however, no suggestion which found favour with the judge that this plaintiff wanted the premises for any commercial purposes. He said he wanted it — and the judge seems to have accepted his evidence on the point — so that from time to time he could use it himself, particularly having regard to the presence of his daughter in this city. Unless that finding could be regarded in this court as a perverse finding which had no warrant from the facts as disclosed in the case, in my judgment this court should be very slow indeed to interfere with the finding made by the judge. In this case, over a period of three or four days, the judge must have had the flavour of this case and decided, as he was entitled to decide, in favour of the plaintiff that there was a genuine requirement on his part to live in this house as his residence. Once that requirement was satisfied, and once the judge was prepared to find that it was not necessary that there should have been a written communication to the tenant indicating an intention, or a possible intention, to seek possession, the order was inevitable. As an alternative submission, Miss Lang suggests to this court that the learned judge would not have found it equitable to make the order in consequence of waiving the requirement that notice should have been given in writing had he made a proper assessment of the damages due to her client, the defendant, on the counterclaim. As I indicated earlier, the extent of the set-off was only some £800 against a claim for arrears amounting to some £4,000. The point taken by Miss Lang is that if the award of damages had been very substantially increased so that only a small balance would have been payable to the plaintiff, the judge would not have found that it was just and equitable to make the order for possession. It is necessary, therefore, to go to the counterclaim. It was very extensive; it was concerned with the failure of this plaintiff over a considerable period of time properly to repair these premises. The obligation to repair, however, arose only, as I understand the position, if the plaintiff was served appropriately with notices of disrepair and the requirement that that disrepair should be rectified. The judgment of the learned judge does not go into a lot of detail as to when the plaintiff first became aware that the property was in a state of disrepair. On his behalf Mr Parker suggests that the material date was September of 1984, whereas Miss Lang submits that on the documents the material date in relation to notice was very much earlier. The judge, in arriving at the set-off figure of some £858, made three separate awards; they are to be found at pp 12 and 13 of the judgment. A very substantial schedule, prepared on behalf of the defendant and itemised, was before him. Counsel for the plaintiff, Mr Parker, did not argue liability in relation to some 10 or so items in the schedule; in respect of those items the judge made an award in favour of the defendant in the sum of £508.21. He continued: There are various other items which the tenant has listed in file F in the bundle, various matters of damage to piano and pictures etc. I do not intend to go through them in detail and I assess the damages which the Defendant would be entitled to under that head as £100. Miss Lang complains that nowhere in the judgment does the learned judge itemise other parts of her schedule which were disputed. In particular, there were 15 or 16 other items, in respect of which there was a claim for £413.31. It is suggested that the absence of any reference in the judgment to those items means either that the learned judge forgot all about them or, if he did not forget all about them, he wrongly declined to make any award. It is indeed unfortunate that in the judgment no reference was made to those items and no specific finding was made; but for my part I am not persuaded by Miss Lang that the judge was in error in failing to make reference to them in the way that I have indicated; in my view, the only legitimate inference to be drawn from the absence of any mention of them is that, being disputed items, the learned judge was not satisfied that the defendant had discharged the burden of proof which rested upon her. As to this aspect of the case, I would not therefore myself interfere with the award so far as those items are concerned. It would not in any event be in the interest of the parties to send the case back for reconsideration upon issues involving this sort of figure, £413, however important that may be to the defendant. The other award that was made by the learned judge does, however, cause me more concern. It was an award of £250, to which the judge made reference in the last few sentences of his judgment. He said: I award (the defendant) the sum of £250 in addition to the other matters that I have raised, and his justification for that award was expressed in a single sentence. He said: In that respect, there can be no doubt that some anxiety was caused to the Defendant and her family, but this does not sound in damages to any substantial degree. The respect was that in this house there were repairs that should have been carried out and which the judge found had not been carried out, so that, as he said, there was a measure of discomfort, anxiety and inconvenience to the defendant and her family. Counsel for the tenant submits that the award of £250 is wholly inadequate compensation for what this tenant must have suffered over a period of time. In particular she draws our attention to the fact, which is acknowledged on behalf of the plaintiff to a limited extent in point of time, that one of the bedrooms and the living-room of this house were uninhabitable because of damp. Here again, there is a dearth of specific findings by the learned judge as to the basis upon which he made this award of £250 for inconvenience, anxiety and discomfort. Miss Lang drew our attention to a number of cases in which damages have been assessed in respect of the discomfort, anxiety and inconvenience of tenants, the victims of defaulting landlords who should have repaired premises. She also drew our attention to a helpful article in The Law Society’s Gazette, vol 85, no 28 at p 17*. In that article reference is made to a number of cases, some of which may be unreported. We have considered the authorities. It is plain that in this day and age the courts are prepared to award substantial sums to tenants who are the victims of defaulting landlords where disrepair occurs. *Editor’s note: By Nic Madge MA, partner in Bindman & Partners, solicitors, and published on July 20 1988. Mr Parker, on behalf of the landlord in this case, submits that the evidence discloses, if anything, a very short period of time during which the tenant must have suffered. I do not agree. Again — and I repeat — there is in the judgment an absence of a specific finding as to the period during which this tenant was a victim of the consequences of disrepair. One cannot be specific about it. I do not accept, on an overall view of the evidence, that it was limited to a matter of three or four months. My own view, looking at the evidence as a whole, is that it must have extended over a period of at least 12 months, for which this landlord was responsible. In 1988 the sum of £250 must in my judgment be regarded, when awarded by way of compensation for inconvenience, anxiety and discomfort, as little more than nominal. I do not regard this as a case in which nominal damages in respect of this part of the award were appropriate. Accordingly, though conscious of the fact that this court will not interfere with an award of damages unless it is satisfied that such an award is wholly out of keeping with established authority, for my part I would increase the award made by the judge under this heading from the sum of £250 to the sum of £1,000. But I do not think that this increase can in any way invalidate the order for possession which the judge made and which he regarded as just and equitable. Accordingly, in all these circumstances I would dismiss the tenant’s appeal against the order for possession, but I would allow her appeal in relation to her counterclaim and set-off to the extent that I have indicated, by increasing it in the sum of £750. There will therefore have to be an adjustment of the set-off procedure. Agreeing, KERR LJ said: I add only a few words to the last part of Russell LJ’s judgment, dealing with the general damages. In the case of Saunders v Edwards [1987] 1 WLR 1116, at pp 1128 and 1129 I suggested that it was important that in cases involving124 disappointment and loss of amenity, which was the subject-matter of an award of £500 general damages in that case, substantial, albeit moderate, damages should be awarded and that a higher figure would have been justified. Bingham LJ, at any rate, appears to have shared that view at p 1134. In the present case we are dealing with a claim for general damages in a context which is more important than mere disappointment and loss of amenity. We are dealing with physical discomfort and possible damage to health. It is therefore not surprising, and welcome, to find that realistically substantial damages have been awarded in a number of cases which are helpfully set out in the article to which Russell LJ has referred. One must, however, bear in mind, in connection with the awards made in some of those cases (though we have not examined the corresponding circumstances), that in many of them tenants were obliged to move out or to incur expenses. These are not aspects which fall to be taken into account in the claim for general damages in the present case. But I agree entirely that £250 is nowadays no more than a nominal figure. It is just the sort of sum which I considered in Saunders v Edwards should not be awarded, because it is little more than nominal or cosmetic. On the uncertain evidence in this case I agree that £1,000 is an appropriate figure, though it might well have been higher. I agree with the order proposed by Russell LJ. Since the tenant has paid the arrears of rent less £250, there will be a recoupment by her of £750 from the landlord. Tenant’s appeal on possession order dismissed, but date deferred; £250 awarded for general damages on tenant’s counterclaim increased to £1,000. No order for costs, save for legal aid taxation of tenant’s costs, otherwise order for costs below to stand.