Assaad Mohammed Al Hassani (Plaintiff v Kevin Merrigan (Defendant
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,SIR GEORGE WALLER |
| Judgment Date | 28 October 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J1028-13 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/1101 |
| Date | 28 October 1987 |
[1987] EWCA Civ J1028-13
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BLOOMSBURY COUNTY COURT
(HIS HONOUR JUDGE QUENTIN EDWARDS Q.C.)
Royal Courts of Justice,
Lord Justice Parker
and
Sir George Waller
87/1101
No. 8730591
MR. P. STADDON (instructed by Messrs. Oliver O. Fisher & Co., London) appeared on behalf of the Appellant/Defendant.
MR. W. CLARK (instructed by Messrs. Canter & Martin, London) appeared on behalf of the Respondent/Plaintiff.
The defendant appeals from the order and judgment of His Honour Judge Quentin Edwards Q.C. made in the Bloomsbury County Court on the 11th May 1987 whereby it was ordered (i) that the defendant deliver up possession of Flat 28 Leith Mansions, Grantully Road, London W.9., within two months; (ii) that the defendant do pay the plaintiff the sum of £8006.07 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 the 9th May 1987 to delivery of possession.
On the 8th July 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 the 20th November 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 whilst 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 21st November 1983 to 19th December 1983, but 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 the 15th April, Mr. Lake gave what was described as formal notice to quite the premises on the 13th May. It is, however, common ground that it was ineffective as a notice. On the 13th May, 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 the 8th August 1985, the plaintiff by his solicitors gave a valid notice to quit on the 9th September 1985, and thereafter the defendant became the statutory tenant of the premises.
Between the 9th September 1985 and the commencement of proceedings for possession on the 28th January 1987, it is, for present purposes, only necessary to mention one event. On the 7th March 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 unuseable 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 the 6th March 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 B.J. 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 (insofar 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 proper 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 4th April 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 W.C. is in a very poor condition).
The report referred to was no doubt obtained by the defendant's solicitors following the letter of the 7th March 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 the 10th March 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 26th February 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 the 13th March, 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 the 26th March, by which time the...
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