Amanda Lees v Ivan Kaye
| Jurisdiction | England & Wales |
| Judge | Dight CBE |
| Judgment Date | 13 May 2022 |
| Neutral Citation | [2022] EWHC 1151 (QB) |
| Docket Number | Case No: F01WI909 |
| Court | Queen's Bench Division |
[2022] EWHC 1151 (QB)
HIS HON JUDGE Dight CBE
(Sitting as a Judge of the High Court)
Case No: F01WI909
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Daniel Clarke (instructed by TV Edwards LLP) for the Applicant
Ian Peacock (instructed by Perrin Myddleton) for the First Respondent
The Second Respondent appeared in person
Hearing date: 30 March 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HON JUDGE Dight CBE
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 2pm on 13 May 2022.
Introduction
8 Leysfield Road, London W12 (“the Building”) is a house divided into two maisonettes, formerly owned and occupied by the Applicant and the First Respondent respectively. They jointly owned the freehold of the Building through a limited company of which they were both shareholders and directors. They each had a long lease of their respective flats. The First Respondent has since sold his interest in the upper flat to the Second Respondent's partner.
The Applicant and First Respondent were parties to litigation (“the Substantive Claim”) which was tried in the county court at Central London in connection with the Applicant's use and occupation of her flat, being the Ground Floor Flat, (“the Flat”). In the Substantive Claim the First Respondent, who was the claimant in the litigation, alleged that the Applicant, who was the defendant in the litigation, had been guilty of nuisance and harassment and had disturbed the First Respondent in his enjoyment of his flat on the upper floor of the Building. The First Respondent succeeded in the Substantive Claim and was awarded damages and costs which he subsequently secured by a (final) charging order over the Applicant's long leasehold interest in the Flat (“the Lease”). Ultimately the First Respondent was granted an order for sale of the Lease and possession of the Flat in separate proceedings brought in the Willesden County Court, which is the claim in which the application (“the Application”) now before me has been made, and which I will refer to as “the Order for Sale Claim”.
Possession of the Flat was taken on 13 January 2022 pursuant to a writ of possession number HP122/2021/HIG293375 issued in the High Court (“the Writ of Possession”). Exchange of contracts and completion of the sale of the Lease of the Flat to the Second Respondent for the sum of £505,000 took place on 10 March 2022. The mortgage over the Lease has been repaid and the balance of the proceeds of sale passed to the First Respondent. This left the Second Respondent and her partner as the owners of the entire Building, although registration of the transfer of the Lease to the Second Respondent at HM Land Registry has yet to take place.
The Application
By her application notice dated 24 February 2022 the Applicant seeks a declaration that execution of the Writ of Possession was null and void in accordance with regulation 7(12) of the Debt Respite Scheme (Breathing Space Moratorium and Mental Health Crisis Moratorium) (England & Wales) Regulations 2020 (“the Regulations”) because there was a mental health crisis moratorium in place to protect the Applicant at the time of execution (“the Moratorium”). Alternatively the Applicant submits that execution of the Writ of Possession in the circumstances amounted to oppression. She also seeks an order permitting her to retake possession of the Flat. In the interim she has been staying with friends.
The First Respondent opposes the Application and argues, in general terms, that there is no clear evidence that the Moratorium was in force at the date of the eviction, in any event the eviction and sale were not breaches of the Moratorium and finally, that the court should not exercise its discretion in favour of the Applicant even if she otherwise succeeds in the Application.
The Second Respondent appeared before me in person and adopted the submissions made by Mr Peacock on behalf of the First Respondent.
The issues
The issues between the parties in relation to the Application are as follows:
i) Whether the Moratorium was properly registered and effective at the date of execution of the Writ of Possession in accordance with regulation 31(2)(a);
ii) Whether the judgment debt in the Substantive Claim was exempted from the effect of the Moratorium because it was a “non-eligible debt” by reason of regulation 5(4)(i) of the Regulations as a debt consisting of damages for personal injury because £12,000 of the sum awarded was in respect of what was in effect personal injury;
iii) Whether the judgment debt was excluded from the effect of the Moratorium by reason of regulation 7(13) because it was secured by a charging order;
iv) Whether at the time of the sale to the Second Respondent the Applicant had an interest in the Lease of a type which was caught by the Moratorium, it being said that the sale was of legal interest in the Lease whereas the interest of the Applicant was solely a beneficial interest under a trust;
v) Whether, on a proper construction of regulation 7(12), the sale of the Lease to the Second Respondent is null and void even if the execution was in breach of the Moratorium;
vi) Should the court exercise its discretion in favour of the Applicant if she otherwise succeeds in the Application?
The facts
The First Respondent acquired his long lease of the upper maisonette in the Building in the summer of 2013. By then the Applicant had already owned the Lease of the Flat for a number of years. His case is that the behaviour of the Applicant which led him to bring the Substantive Claim had already been going on for a number of years by that point.
The Substantive Claim was tried by His Hon Judge Roberts, in the absence of the Applicant who had unsuccessfully sought an adjournment of the trial. The judge handed down a written judgment on liability on 30 July 2018. In the course of his judgment the judge directed himself as to the relevant legal principles relating to the tort of nuisance and those relating to the statutory tort of harassment under the Protection of Harassment Act 1997. He held [77] that the Applicant's behaviour over a number of years caused the claimant alarm and distress and “amounted to a course of conduct which amounted to harassment…and interfered with the [First Respondent's]…use and enjoyment” of his flat. The judge appears to have accepted the First Respondent's evidence that there had been multiple acts of nuisance at common law and that they had “a dramatic effect on [the First Respondent's] well-being” which had rendered him “exhausted, depressed and mortified that [he] had moved into a property with such an unstable and vicious neighbour.”. He granted injunctive relief against the Applicant to restrain recurrence of the acts of nuisance and harassment which he had found and left the assessment of damages to a further hearing.
In a further written judgment handed down on 2 January 2019, following the hearing which dealt with the assessment of damages, which the Applicant again did not attend, His Hon Judge Roberts awarded damages for (1) diminution in value of the First Respondent's flat in the sum of £69,000 [16], (2) distress and anxiety caused by the harassment [21], and (3) other consequential losses. As to the claim for damages for distress and anxiety he said [21]:
“The personal distress or discomfort which the claimant may experience as a result of nuisance is part of the assessment of the claimant occupier's loss of amenity. Therefore if the claimant is compensated for personal distress or discomfort as well as diminution in the amenity value of the land, which has already been informed by the personal distress or discomfort of the claimant, there will be double recovery. In contrast, the 1997 Act is different in that it provides a civil remedy for harassment. Section 3(2) of the 1997 Act expressly provides that damages can be awarded for any anxiety caused by the harassment and any financial loss resulting from it. Such financial loss in my judgment includes diminution in value of the land. The damages for anxiety and the damages for diminution in value are distinct and separate losses and therefore there is no double recovery.”
The judge found that “the Claimant's distress was the reasonably foreseeable consequence of the Defendant's harassment” [25] and led both to “distress and anxiety” [27(iv)] in respect of which he awarded the sum of £12,000 [29]. He declined to award aggravated damages [31].
The total award, including consequential losses, was £96,963.00 in addition to which he ordered the Applicant to pay the costs of the assessment hearing on the standard basis, directing that she should pay the sum of £50,000 on account of such costs.
For reasons which I will come to in due course Mr Peacock, for the First Respondent, submitted to me that His Hon Judge Roberts had awarded damages for psychiatric harm. However, it is apparent to me, from a close reading and analysis of both the specific findings of the judge, some of which I have set out above, and from the case law according to which he directed himself in assessing damages, that he made no award in respect of psychiatric harm. The written judgments do not identify psychiatric harm as a type of injury or loss being claimed by the First Respondent. There are no express findings of psychiatric harm and it cannot be said that there is a necessary inference to be drawn from...
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