Gil v Baygreen Properties Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Lord Justice Clarke,LORD JUSTICE CLARKE,SIR MARTIN NOURSE |
| Judgment Date | 05 July 2002 |
| Neutral Citation | [2002] EWCA Civ 1340 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2001/2491/A |
| Date | 05 July 2002 |
[2002] EWCA Civ 1340
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SHOREDITCH COUNTY COURT
(His Honour Judge Cotran)
Royal Courts of Justice
Strand
London WC2
Lord Justice Ward
Lord Justice Clarke and
Sir Martin Nourse
B2/2001/2491/A
B2/2001/2491
Mr D Lightman (instructed by Messrs Balsara & Co, London EC4) appeared on behalf of the Appellant Defendant.
Mr P J White (instructed by Messrs Rosetta Offonry & Co, London NW6) appeared on behalf of the Respondent Claimant.
I will ask Lord Justice Clarke to give the first judgment.
LORD JUSTICE CLARKEIntroduction
This is an appeal, brought with the permission of Lord Justice Keene, against an order made by His Honour Judge Cotran in the Shoreditch County Court on 4th October 2001. By paragraph 1 of that order the judge made an order for possession of 85a Burdett Road, London E3, in favour of the respondent, Baygreen Properties Limited ("Baygreen"). There were other terms of the order to which I shall return in a moment. The order was made by consent.
Lord Justice Keene granted permission to appeal on one ground only, namely whether the court had jurisdiction to make the order. He refused permission on all the other grounds.
The appellant, Mrs Chinwe Cordelia Gil (whom I will call "the tenant"), seeks permission to rely upon some further evidence not before the judge which it is said supports her appeal.
The Tenancy
On 22nd November 1996 the tenant entered into an assured shorthold tenancy of one room at 85a Burdett Road with a lady called Mrs L Michael. The rent was £25 a week and the period of the tenancy was two years. At some stage thereafter Refined Properties Limited ("Refined") acquired the freehold, although possibly not directly from Mrs Michael but via a Mr Morias. Also at some time a company called Target Corporation Limited ("Target") assumed responsibility for the management of the flat on behalf of Refined. It is common ground that when the period of two years expired in November 1998 the tenant continued as the assured tenant of Refined but on a periodic weekly basis. After Baygreen acquired the freehold in April 2000, the tenant became its tenant on the same basis.
The Disputes
There has been a long history of dispute between the tenant and her various landlords to which I should briefly refer, although most of it has little, if any, direct relevance to the issues for determination on this appeal.
In January 1998, according to the tenant, the landlords and/or their agents damaged and vandalised the door to her bedroom and her personal belongings were stolen. In April 1999, again according to the tenant, the property was vandalised by Refined and/or Target, who damaged the main door of the property and changed the locks both to the property and to the tenant's bedroom.
On 14th April 1999 the tenant issued proceedings against Refined and Target. In those proceedings she sought an injunction and damages for, among other things, breach of the tenancy agreement, vandalism and harassment.
In July 1999 Refined brought possession proceedings against the tenant in the High Court, although they were subsequently discontinued. In August 1999 Target was dissolved.
In September 1999 the tenant reported problems relating to the property. According to her, Tower Hamlets Council served an abatement notice on the landlords for its repair, but that was not complied with. Also the fire brigade, having inspected the property, served prohibition notices on the tenants or some of them. Nothing was done, she said, to comply with the terms of any of those notices. She said that she herself installed a new heater or boiler in May 2000. In October 1999 Baygreen was incorporated. In December a second abatement notice was served on Refined and, indeed, on Target.
On 11th April 2000 the property was transferred by Refined to Baygreen for a price said to be £86,500. It is the tenant's case that the property was transferred by Refined to Baygreen in order to defeat her claim and that no sum was paid for it by Baygreen. It is further her case that there is a close relationship between Refined and Baygreen and those behind them, and she has commenced proceedings in the Chancery Division seeking to set aside the transfer under section 423 of the Insolvency Act 1986. We are not, however, concerned with those events. I therefore return to 2000.
During 2000 the tenant's action continued against Refined and Target. On 14th July 2000 Baygreen served a notice under section 8 of the Housing Act 1988 ("the 1988 Act"), as amended by section 151 of the Housing Act 1996, seeking possession of the flat on grounds 8 and 10 in Schedule 2 of the 1988 Act as follows:
" Ground 8: Both at the date of the service of the notice under section 8 of this Act relating to the proceedings for possession and the date of the hearing the tenant owed at least eight weeks' rent.
Ground 10: Some rent lawfully due from the tenant was unpaid when possession proceedings were begun and was in arrears at the date the Notice was served by the landlord of intent to bring possession proceedings.
Particulars of the Grounds
Ground 8: The amount owed by the tenant in rent as at 13th July 2000 is £980.00 which is in excess of eight weeks' rent. (The weekly rent is £70.00)
Ground 10: There has been no payment in the shortfall of rent received from the tenant since 13th April 2000."
The particulars of claim in this action were dated 12th September 2000. In them Baygreen claimed possession and rent at £70 a week since 13th April 2000 on the ground that the tenant had paid no rent since Baygreen acquired the freehold. The grounds on which possession was sought were those stated in the notice, namely grounds 8 and 10 in Schedule 2 of the 1988 Act.
On 30th January 2001 the tenant served a defence and counterclaim which she had drafted herself in which she set out much of the history to which I have already referred. Subsequently, that defence and counterclaim was replaced by an amended defence and counterclaim dated 9th February 1991 which was settled by solicitors. In that document the counterclaim was much more limited. The special damages were limited to £5,230.20, which either wholly, or very largely, related to events after Baygreen became owner.
Baygreen served a reply and defence to counterclaim dated 26th September 2001, but on 30th September 2001 a yet further amended defence and counterclaim was served, this time again settled by the tenant herself, which was said to be in substitution of any previous defence and counterclaim. In that document the tenant denied that Baygreen was entitled to possession. She admitted the tenancy agreement, but asserted that the rent payable was £25 a week. She denied that any proper notice had been given to her.
The defence referred almost in passing to her claim against Refined and Target. In paragraph 6 it was admitted that the total sum "due" at 7th September 2000 was £500, and at 7th September 2001 was some £1,700. However, it is plain that the tenant was not admitting that the rent was "lawfully due" because in paragraph 8 she asserted a right to set off her counterclaim in which she alleged that there was a breach of a number of the landlord's duties, including a breach of the implied term of quiet enjoyment and of the landlord's covenants implied by section 11 of the Landlord and Tenant Act 1985, namely to keep the property in repair and its installations in repair and proper working order. She alleged breaches of those duties. All, or almost all, of the breaches were said to have occurred after Baygreen became the owner. Most of her pleaded particulars of special damage also related to that period. There were five items in all totalling £5,780, although the first two, which amounted to £1,855, appear to relate to the period before Baygreen's time. The others were replacement of the boiler and work necessary to satisfy the notices served in the previous year but said to have been carried out in the relevant period. The tenant also claimed general damages and, indeed, aggravated and exemplary damages arising out of previous events.
As stated earlier, the order of His Honour Judge Cotran was made on 4th October 2001. In the meantime, on 19th May 2001 District Judge Mitchell gave judgment in default against Refined with damages to be assessed; and on 5th August 2001 District Judge Wright made a similar order against Target.
Subsequently, after the order of Judge Cotran, damages were assessed in the absence of Refined or, indeed, Target in sums which I am bound to say are probably very much greater than they would have been if the defendants in those actions had been represented. On 20th November 2001 District Judge Manners assessed damages against Target for about £22,000 and against Refined for over £44,000. They were apportioned as to nearly £52,000 special damages, £5,000 distress, pain and the like, and £10,000 exemplary damages. Thereafter, Refined ceased trading on 30th November 2001 and was put into liquidation on 18th December 2001.
The Order
It is common ground that the order of 4th October was made by consent. It was in these terms:
"Upon hearing Counsel for the Claimant and the Defendant
And by consent IT IS ORDERED:
1.The Claimant do recover possession of the premises at 85A Burdett Road, London E3 on 26th November 2001.
2.All further proceedings on the claim and counterclaim herein be stayed on the terms set out in the schedule to this order and agreed between the parties.
3.There be...
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