Henley v Bloom
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lady Justice Smith |
| Judgment Date | 09 March 2010 |
| Neutral Citation | [2010] EWCA Civ 202 |
| Docket Number | Case No: B5/2009/1597 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 March 2010 |
[2010] EWCA Civ 202
His Honour Judge Simpkiss
Before: Master of the Rolls
Lord Justice Longmore
and
Lady Justice Smith
Case No: B5/2009/1597
6BN 04595
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
Mr Jan Luba QC and Mr Michael Paget (instructed by Brighton Housing Trust)
for the Appellant
Mr Guy Fetherstonhaugh QC and Mr Simon Sinatt (instructed by Osler Donegan Taylor) for the Respondent
Hearing dates : 9 February 2010
Lord Neuberger MR:
The issue on this appeal is whether the courts below were right to hold that, on the grounds of abuse of process and impossibility of a fair trial, the former tenant of a flat was disentitled from bringing proceedings against his landlady for damages which allegedly arose from breaches of her repairing covenant.
The factual background
Mr Andrew Henley was granted a tenancy of the basement flat (“the flat”) at 14 Devonshire Place Brighton (“the building”) in about 1986. In September 2001, Mrs Shelley Bloom acquired the freehold of the building, and became Mr Henley's landlady. By virtue of section 11(1)(a) of the Landlord and Tenant Act 1985, Mrs Bloom was liable, subject to certain qualifications and extensions, “to keep in repair the structure and exterior of the premises (including drains, gutters and external pipes)”. One exception to that liability is in section 11(2)(a), which excludes “works or repairs for which the lessee is liable by virtue of his duty to use the premises in a tenant-like manner”.
At least according to the evidence which Mr Henley has produced, the flat seems to have suffered from damp ingress, which had caused the plaster on some of the walls and ceilings to perish, blow or crack, skirting boards to perish or rot, paint to flake, tiles to lose adhesion, and mould to appear in some locations. While it would be wrong to express a concluded view on the issue, it appears very likely that this had come to the attention of Mrs Bloom by 2003, as a result of inspections of the flat by her agent and contractors, and from complaints made by Mr Henley to Mrs Bloom or her agent.
In October 2002, Brighton and Hove City Council (“the Council”), served notices on Mrs Bloom, with copies to Mr Henley, indicating that they were “minded to” serve formal notices on her requiring certain works to be done to the flat and to the building, as they were “in such a state of disrepair” and “substantial works of repair” were “necessary to bring” the building and the flat “up to a reasonable standard”. The schedules to the notices contained fairly detailed descriptions of remedial work which was said to be required. They included references to renewing and repairing doors, door frames, woodwork and window sash cords of the flat, removing damp plaster in the flat, and mending a rainwater pipe and repairing brickwork on the exterior of the building. In November 2002, it appears that such formal notices were served by the Council, again with copies served on Mr Henley.
It seems pretty clear that, presumably as a result of these notices, Mrs Bloom then obtained a report as to the state of the flat, as she received an estimate from Bensleys, a building works company, for “damp proofing, replastering and associated internal works” to the flat. That estimate referred to a “report dated 20 th February 2003”. None of the work referred to on the estimate was done. It seems that a further specification of work was prepared at Mrs Bloom's request in September 2006.
In 2006, Mrs Bloom sold the freehold of the building to the tenants of the upper part, and, at the same time, she was granted back a long lease of the flat: accordingly, she remained Mr Henley's landlady. In August 2006, she issued proceedings in the Brighton County Court against Mr Henley seeking possession of the flat on the ground that it was let under an assured shorthold tenancy which had been validly brought to an end.
In October 2006, Mr Henley filed a defence contending that Mrs Bloom was not entitled to possession of the flat. His first argument was that he was a regulated tenant under the Rent Act 1977, and that there were no grounds for possession under that Act. His alternative argument was that, if possession could otherwise be sought on the ground that he was a shorthold tenant, no notice had been served on him under section 52 of the Housing Act 1980. Section 55 of the 1980 Act provides that, if a landlord seeks possession on the basis that the tenancy is a shorthold which has been determined, he either must show that a notice had been served on the tenant at the start of the tenancy under section 52 or he must satisfy the court that, despite the absence of such a notice, it would be “just and equitable” to make an order for possession. Mr Henley's defence therefore included a further contention that it would not be just and equitable to order possession, because (i) he had occupied the flat for 20 years, (ii) he had carried out improvements to the flat costing “in the region of £10,400”, (iii) he was in poor health, (iv) he would not find other accommodation, (v) Mrs Bloom had become “a landlord by purchase”.
The parties then entered into negotiations, the upshot of which was an agreement which was recorded in a consent order dated 25 January 2007 (“the consent order”). The consent order stated that (i) Mr Henley should give up possession of the flat on or before 1 st June 2007, (ii) Mrs Bloom should pay Mr Henley's solicitors £16,000 in specified instalments; (iii) this money was not to be paid to Mr Henley until he had vacated the flat; (iv) Mrs Bloom should pay Mr Henley's costs in the sum of £4,000. The order had three introductory recitals. The first was that the parties had reached agreement; the second recited that “the payments to be made by [Mrs Bloom] to [Mr Henley] pursuant to this Order are in full and final settlement of any claim that [Mr Henley] might have arising from work improvements or enhancements undertaken by him or on his behalf to the [flat]”; the third recital said that Mr Henley would give up possession of the flat pursuant to the agreement “in good tenantable repair and condition”.
Mr Henley vacated the flat on 1 st May 2007, but, before doing so, he commissioned a report on the extent of disrepair and dampness in the flat from a Mr Sennett, who is an experienced environmental health officer, and describes himself as an “Environmental Health & Housing Consultant”. Mr Sennett produced a report dated 28 April 2007 identifying wants of repair and items of dampness in the flat. Mr Henley did not raise the question of disrepair with Mrs Bloom until after he had vacated and after she had had significant works of refurbishment carried out to the flat around July 2007. When Mr Henley raised his claim for damages for disrepair, Mrs Bloom's solicitors raised a number of arguments. Those arguments included the point that much of the disrepair was due to Mr Henley's breaches of covenant, a contention based at least in part on what the builders refurbishing the flat had reported to Mrs Bloom. Another point raised by Mrs Bloom's solicitors was that Mr Sennett's report did not link the defects in the flat to any specific failure by Mrs Bloom, and this led to a second report from Mr Sennett dated 7 November 2008, stating that there was such a link, and describing what it was.
The instant disrepair claim
Three weeks later, on 28 th November 2008, Mr Henley issued the instant proceedings in the Brighton County Court, alleging that Mrs Bloom had been in breach of her statutory obligation to repair (and in breach of an implied obligation to repair and in breach of her covenant for quiet enjoyment) “from about September 2001 to 1 st May 2007”, “by allowing water ingress/water penetration into the [flat] thereby causing dampness to the interior structure and wall plasters”, and citing the first 2007 report of Mr Sennett and the 2003 report of Bensleys. This was then alleged to have led to “loss, damage, distress and inconvenience” to Mr Henley, as it had caused the flat to be “damp, unsightly, odorous and unpleasant to occupy”, and it had resulted in damage to some of his possessions. He claimed damages “not exceeding £15,000”.
On 5 th January 2009, Mrs Bloom filed a defence and counterclaim. She first contended that the proceedings were an abuse of process as the disrepair claim should have been raised in the possession proceedings. She then went on to deny any breach of her repairing obligations, and also contended that “[t]he interior conditions … and any appearance of damp in the [flat] was caused” by Mr Henley allowing condensation to collect, preventing ventilation by sealing the windows and the like, installing defective plumbing and central heating systems, and causing radiator leaks. Relying on those allegations, Mrs Bloom counterclaimed for damages for Mr Henley's failure to comply with his implied covenant to use the flat in a tenant-like manner, and his failure to comply with his obligation under the recital in the consent order to give up possession of the flat in good tenantable repair and condition.
Mrs Bloom applied to strike out Mr Henley's claim (“the disrepair claim”) on the ground that it was an abuse of process, because it ought to have been raised in the earlier possession proceedings (“the possession claim”), and because it would be impossible to have a fair trial of the disrepair claim.
The application came before District Judge Taylor on 3 rd March 2009. He decided to strike out the disrepair claim...
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