Chelmsford Cars v Moseley
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin |
| Judgment Date | 22 January 2015 |
| Neutral Citation | [2015] EWCA Civ 137 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B5/2014/3194 |
| Date | 22 January 2015 |
[2015] EWCA Civ 137
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Kitchin
B5/2014/3194
The Appellant did not appear and was not represented
Mr T Jefferies (instructed by Greene & Greene) appeared on behalf of the Respondent
This is an application for permission to appeal against the judgment of Her Honour Judge Plumstead given on 5 September 2014 and her consequential order requiring the Defendants, Mr and Mrs Moseley, to give up to the Claimant possession of the Mill House on or before the expiry of the 3 months after receipt by the Defendants' solicitors of the sum of £17,112 which was to be paid to those solicitors by the Claimant. Mr Thomas Jefferies has appeared on behalf of the Defendants upon this application. He did not appear below.
The background relevant to this application may be summarised as follows. The dispute concerns a Grade II listed building in Shalford in Essex known as Codham Mill. It is set in grounds including the mill race, a garden area and other land. The main building is divided into two parts, the greater part of which is the former mill and the lesser part is the Mill House where, when the mill was working, the miller used to live.
The First Defendant, Mr Moseley, is a statutory tenant, having first been granted a lease to the Mill House in December 1972 for a term of 3 years. He has continued to occupy the Mill House ever since and lives there with his wife, the Second Defendant.
The Claimant is a limited company of which Mr Sharp is the managing director. The Claimant purchased Codham Mill in September 2012 with a view to restoring both it and other buildings around it and in these proceedings sought possession of the Mill House pursuant to section 98(1)(a) of the Rent Act 1977. It accepted that it had to satisfy the court that suitable alternative accommodation was available for the First Defendant and his family and that it was reasonable to make an order for possession. It maintained that a cottage called Hulls Farm Cottage which was owned by the Defendants was suitable alternative accommodation, but accepted the evidence of the experts that some works were required to be carried out upon it. It therefore agreed to pay for those works.
The Defendants resisted that claim on the basis that the cottage was not suitable alternative accommodation and it was not reasonable to make the order for possession. They also counterclaimed for a declaration that the demise by the lease of December 1972 consisted of the whole of the registered title purchased by the Claimant and not just the Mill House. The Defendants also claimed damages for breach of repairing covenants, specific performance of those repairing covenants, damages for distress occasioned by alleged unlawful entry onto the property and payment for works which they claimed to have carried out on the property in the years between around 1998 and 2013.
The judge dealt first with the extent of the demise and the assertion by the First Defendant that the lease signed by him did not truly reflect the extent of the demise. At the heart of the First Defendant's case was that he had a conversation with the then landlord about the time he entered into occupation, in the course of which the landlord told him that he was granting him a tenancy not only of the house, garden and outbuildings, but of the whole of what is now included in the Claimant's registered title.
On this particular issue, the judge found the First Defendant's case to be a fabrication. Indeed, the judge found the First Defendant not just to be an unreliable reporter of events, but that he had not told the truth and that his untruthfulness was deliberate, calculated and persistent. The judge was therefore satisfied that she should treat his evidence in other respects with considerable caution.
The second issue considered by the judge was whether the Claimant had proved that suitable alternative accommodation would be available to the First Defendant and his family or would be available if certain work identified by the experts was carried out. In this regard, the judge found the Mill House to be in an appalling state of disrepair, as indeed was the mill itself. The judge then proceeded to describe the extent of that disrepair and explained that the internal state of the house was substantially worse than it had been when it had been last inspected in 2010. All of the work required would need consent and approval of English Heritage and, in order to fulfil the landlord's obligations, would require works costing a figure running to hundreds of thousands of pounds. The judge also accepted the evidence of the Claimant's expert Mr Jacklin that the First Defendant was in breach of his covenant under the lease and that to comply with those covenants would require works costing in excess of £60,000.
As for the alternative accommodation, the cottage owned by the First and Second Defendants, this had not been occupied by them, at least in recent years. The judge described it in general terms and found it to be in good condition structurally. It looked attractive, but it required certain work to render it fit for occupation. The Claimant's expert Mr Jacklin estimated the costs of those works at around £15,000 including VAT. There was evidently no substantive challenge to that figure. The judge set out the nature of the works that she had in mind in detail at paragraph 48 of her judgment. The judge recorded that the First Defendant was asked whether he would agree to the Claimant undertaking the work at its expense, but he refused. The judge recognised that even though the property might be fit for occupation or at least rendered fit for occupation, it did not necessarily mean that it was suitable alternative accommodation for the Defendants and their family. The judge was referred in this connection to various authorities from which she drew certain principles which she set out in paragraph 53 of the judgment, including most importantly, that it was not an objection that the alternative accommodation was owned by the tenant rather than provided by the landlord, although she recognised that the court must be satisfied that it was reasonable for the tenant to rearrange his affairs so as to make the accommodation available, for example by obtaining possession if the property was let.
The Defendants took a series of points as to why the cottage was not suitable alternative accommodation. The judge proceeded to deal with each of them in turn from paragraph 54 of her judgment. They included such matters as size, lack of parking, disputes with neighbours and that the cottage was, so the First Defendant said, effectively his pension. As I have said, the First Defendant did not accept the claimants' offer to carry out the necessary works at its own expense. In those circumstances, the judge concluded that the only way the repairs could be carried out was by specifying the maximum sum that the Claimant should pay, when it should be paid and a deferred date for possession. I should add that in the course of addressing these issues, the judge found the First Defendant to be a person who had developed obstinacy and awkwardness to a high art and that he was a very difficult man who was capable of getting into disputes with the most mild and amenable persons.
The third issue addressed by the judge was the contention that the Claimant's managing director, Mr Sharp, to whom I have referred, broke the landlord's covenant of quiet enjoyment...
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