Cobbold v London Borough of Greenwich
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Gibson,Lord Justice Sedley |
| Judgment Date | 09 August 1999 |
| Neutral Citation | [1999] EWCA Civ 2074 |
| Date | 09 August 1999 |
| Year | 1999 |
| Court | Court of Appeal (Civil Division) |
[1999] EWCA Civ 2074
Lord Justice Peter Gibson
Lord Justice Sedley
IN THE SUPREME COURT OF JUDICATURE PROFORMA
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WOOLWICH COUNTY COURT
(His Honour Judge Welchman)
Royal Courts of Justice
Strand
London WC2
Mr. R.K. Sahonte (instructed by the Legal Department, London Borough of Greenwich) appeared on behalf of the Applicant/Defendant.
Mr. J. Mitchell (instructed by Messrs Edell Jones & Lessers, London, E6) appeared on behalf of the Respondent.
This is an application by the defendant, the London Borough of Greenwich, for permission to appeal from the order of 5th August 1999 of His Honour Judge Welchman in the Woolwich County Court. Greenwich had applied to the judge for an adjournment of the hearing of the action which is brought against Greenwich by the claimant, Julie Ann Cobbold, and is listed for two days commencing tomorrow. The judge refused that application as well as Greenwich's further application for leave to amend their defence.
The claimant commenced her action in April 1997. She sought damages for disrepair of her home, of which she has been the tenant since 1991 and Greenwich has been the landlord. Her home is at 24, Dahlia Road, Abbey Wood, London SE2. She relied on breaches of repairing covenants by paragraph 3 of her particulars of claim. She referred to the express terms in her tenancy agreement for Greenwich to maintain the premises in good condition and repair except for repairs which were her responsibility, and to keep under constant review the changing needs of tenants and to take action to improve property to keep pace with such needs. She also relied on section 11 of the Landlord and Tenant Act 1985, as amended, that section containing terms which are implied into tenancies, and she also relied on section 4 of the Defective Premises Act 1972.
By their defence served on 12th May 1997, Greenwich traversed all the allegations made. The action was originally listed for hearing on 23rd November 1998 but that date was vacated on the application of the claimant, with the consent of Greenwich, pending the outcome of an appeal in another case, Welsh v London Borough of Greenwich. In that case judgment was given against Greenwich in the County Court in early January 1999.
One of the points in issue on the pleadings was whether the express terms of the tenancy agreement included an obligation on the part of Greenwich to deal with condensation dampness in the claimant's property. A similar point had been taken successfully by the tenant in the Welsh case. But Greenwich are appealing that case, and they would further wish to claim that the tenancy terms in the Welsh case differ from those in the claimant's case. That is because, Greenwich claim, there has been a variation made to the tenancy agreement.
On 18th November 1998 the claimant's solicitors were sent a copy of an unsigned witness statement by Elizabeth Sutton for Greenwich giving evidence of the variation. The claimant's solicitors were also sent a supplementary list of documents relating to proceedings brought by the claimant against Greenwich in Greenwich Magistrates' Court under the Environmental Protection Act 1990. Those proceedings had led to an award of damages against Greenwich in favour of the claimant on 4th April 1997. The documents were also sent to the claimant's solicitors. On 22nd March 1999, they, by letter to Greenwich's solicitors, noted that Greenwich would be pursuing their argument in relation to the variation of the tenancy. The claimant's solicitors, between March and June, were suggesting that the case should not be listed for hearing until the outcome of the appeal in the Welsh case was known. Greenwich, on the other hand, were pressing for listing the action, but they were doing so on the footing that there had been a variation of the tenancy in 1995. On 18th May 1999 the claimant's solicitors pointed out that the variation had not been pleaded. Greenwich's solicitors responded on 27th May, saying that the claimant's solicitors had been aware of the variation claimed by Greenwich because of correspondence between them. Greenwich's solicitors said that they were waiting to receive an amended defence from counsel. That document was sent to the claimant's solicitors under cover of a letter of 29th June.
By the draft amended defence Greenwich sought to plead a variation to the tenancy of the claimant from 17th July 1995 and a compromise of the claimant's claim for damages by reason of the award made in the Greenwich Magistrates' Court on 4th April 1997. On 13th July the claimant's solicitors refused to consent to the proposed amendment. They said that it was far too late. They said that the hearing of the trial had been fixed for the 10th and 11th August 1999. What appears to have happened is this. A Deputy District Judge, of his own motion, had on 25th May set down the action for hearing and fixed the hearing date of 10th and 11th August. But Greenwich did not receive notice of this. On 29th June Greenwich had written to the County Court to ask whether the case had been listed for hearing, but no reply was received. It was only when, on 14th July, Greenwich's solicitors received the letter from the claimant's solicitors of 13th July that Greenwich became aware of the hearing date. Greenwich found that Miss Sutton and another witness, Lee Kerry, whose evidence was to be to the effect that the problem of condensation was caused by the lifestyle of the claimant, were unavailable for the 10th and 11th August. On 18th July Greenwich's solicitors wrote to the claimant's solicitors, pointing out that their attitude to the hearing of the case had undergone a change. Greenwich's solicitors said that the claimant's solicitors were aware of the point sought to be raised in the...
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