Drane v Evangelou
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE GOFF |
| Judgment Date | 11 November 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J1111-6 |
| Docket Number | Plaint No. 7509380 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 November 1977 |
[1977] EWCA Civ J1111-6
The Master of the Rolls (Lord Denning)
Lord Justice Lawton and
Lord Justice Goff
In The Supreme Court of Judicature
Court of Appeal
On Appeal from Barnet County Court
(His Honour Judge Lonsdale)
MR. T RATON (instructed by Messrs. Pegden & Co, Solicitors, London) appeared on behalf of the Plaintiff (Respondent).
MR. B. COUSINS (instructed by Messrs Griffinhoofe & Co. Solicitors, London) appeared on behalf of the First Defendant/Appellant
"Monstrous behaviour" - that is how the judge described it. He said that it called for exemplary damages. He awarded £1,000. The defendant appeals. These are the facts
Mr. George Evangelou is the owner of a leasehold house 172a Rowes Road, New Southgate. He let a maisonette in it to a young man Mr. Anthony Malcolm Drane who lived there with a woman Ann Watts - not his wife - but who lived with him as if she was his wife. The maisonette was let to them furnished at a rent of £25 a week inclusive of rates from the 31st August, 1974
On the 11th July, 1975 the tenant Mr. Drane applied to the rent officer for a revision of the rent. This annoyed the landlord Mr. Evangelou greatly. So on the 21st August, 1975 the landlord gave Mr. Drane notice to quit. That was not effective because the tenant was protected by statute from eviction. On the 8th October, 1975 the rent officer fixed the rent and adjudged it be £16 a week exclusive. Note the date - the 8th October, 1975
Six days later on the 14th October, 1975, the landlord behaved atrociously. He waited until the young couple were out - when Mr. Drane had taken Ann Watts to college in the morning - and then got three men to invade the maisonette. The judge described what Mr. Drane found on his return: "When he came back a little later, I think at 9. 30, there he found that a large Greek Cypriot was barring the entrance: all his belongings had been put outside in the back yard; the lock: had been hammered in of the door; the door was bolted on the inside, about four to five people were inside his premises and two women among them …some of their belongings were broken and books were damaged". Mr. Drane called the police. They told Mrs. Evangelou - that is the landlord's wife - that she was committing an offence and that it would be reported to the Town Hall. Nevertheless she did not let the tenants back intotheir maisonette. They had to go and stay with friends. They stored some of their belongings in their friend's garage, and slept on the living room floor of their friend's house
Mr. Drane went to the county court and asked for an injunction so that he and Ann Watts could be restored to their premises. The judge on the 31st October, 1975 granted an injunction against the landlord. But the landlord did not obey it. He had moved his wife's father and mother into the maisonette. The landlord or his in-laws appealed to this court. This court heard the appeal on the 27th November, 1975, and rejected it. Lord Justice Lawton, giving the judgment of the court, said: "I am surprised that this appeal has been made to this court. The defendants behaviour was reprehensible …it is right and just that the plaintiff should be put back where he is entitled to be …this court should take every step it can to see that landlords who behave like the defendant in this case has behaved should get no benefit whatsoever from what they have done",
So the appeal was dismissed on the 27th November, 1975, Still the landlord did-not go out, Mr. Drane had to apply again for an injunction to the county court on the 19th December, 1975. The landlord and his in-laws were ordered to leave by 6. 00 p. m. on Saturday, 21st December, They gave Mr. Drane a key, but it did not fit. So he could not get in. On the 23rd December Mr. Drane applied to commit them for contempt. That at least brought results. The in-laws left. It was only then, on the 23rd December; that the in-laws and the defendant went out. The plaintiff had been kept out for ten weeks. Mr. Drane eventually moved in on the 1st January. He found everything dirty and damaged; and went on with his action for damages.
Now there is an appeal to this court. The first point takenon behalf of the defendants- was a pleading point. The particulars of claim alleged that the landlord "had interfered with the right of the plaintiff and his de facto wife Ann Watts to quirt enjoyment of the said premises by unlawfully evicting them from the said premises on Tuesday 14th October 1975" Counsel for the defendant submitted that that claim was for breach of a covenant for quiet enjoyment. He cited a passage from Woodfall (1968) 27th Edition; paragraph 1338: "Since the claim is in contract, punitive or exemplary damages cannot be awarded". The judge at once said: "What about trespass? Does the claim not lie in trespass?" Counsel for the defendant urged that trespass was not pleaded. The judge then said: "The facts are alleged sufficiently so it does not matter what label you put upon it". The judge was right. The plaintiff in the particulars of claim gave details saying that three men broke the door, removed the plaintiff's belongings, bolted the door from the inside: and so forth. Those facts were clearly sufficient to warrant a claim for trespass. As we said In re Vanderells Trusts (1974) 1 Chancery 269 at page 321: "It is sufficient for the pleader to state material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit"
Another pleading point was not taken before the county court but was taken before us. It was said that the particulars oclaim did not expressly claim exemplary damages and therefore they could not be awarded. In the case of Broome v. Cassell & Co. Ltd. (1971) 2 Queen's Bench at page 378 we said that exemplary damages need not be pleaded expressly. In the House of Lords Lord Hailsham in (1972) Appeal Cases it page 1083 said he was contentto accept the view of the Court of Appeal hut he thought the practice should he altered. As a result of his words, the High Court Rules have been amended. Order 18, rule 8, sub-rule (3) says: "A claim for exemplary damages must be specifically pleaded together with the facts relied on". Does that amendment apply to the county court? In my opinion it does not. The County Court Rules have not been amended, So it is not necessary in the county court to plead exemplary damages. The old practice still applies there, where exemplary damages can be awarded, even though not pleaded
In any case this point was not raised in the county court. So it cannot be raised here. If it had been raised in the county court, I am quite sure it would have been met immediately by an amendment to claim exemplary damages.
The next point was one of substance, Mr. Cousins, for the defendant, submitted that it was open to the judge-to award exemplary damages. He has taken us through Lord Devlin's judgment in Rookes v, Barnard & ors. (1964) Appeal Cases 1129, referring us especially to the passages from pages 1226 to 1230, He said that the general principle nowadays is that in a civil action damages are awarded by way of compensation for damage actually done or for any aggravation by way of injured feelings of the plaintiff; but the court cannot in the ordinary way award punitive damages over and above that which is compensation because punishment is the prerogative of the criminal courts and should have no place in the civil courts.
That exclusion of exemplary damages has not found favour in the other common law countries, such as Canada, Australia, New Zealand and the United States of America. But since Broome v. Cassell (1972) Appeal Cases 1027 it must be accepted in England.Lord Devlin acknowledged that there are some categories of tort in which exemplary damages may still be awarded. This case seems to me to come within the second category, lord Devlin said at page 1227: "This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object - perhaps some property which he covets - which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer that tort does not pay". To my mind this category includes cases of unlawful eviction of a tenant. The landlord seeks to gain possession at the expense of the tenant - so as to keep or get a rent higher than that awarded by the Rent Tribunal - or to get possession from a tenant who is protected by the Rent Acts. So he resorts to harassing tactics. Such conduct can be punished, now by the criminal law. But it can also be punished by the civil law by an award of exemplary damages. In the recent case of McCall v, Abelesz (1976) 1 Queen's Bench 585 it was held that the provisions of the Act of 1965 against harassment only...
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