Mafo v Adams
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SACHS |
| Judgment Date | 17 October 1969 |
| Judgment citation (vLex) | [1969] EWCA Civ J1017-1 |
| Date | 17 October 1969 |
| Court | Court of Appeal (Civil Division) |
[1969] EWCA Civ J1017-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by defendant from judgment of His Honour Judge If or Lloyd, Q.C., on the 28th November, 1968, at Wandsworth County Court.
Lord Justice Sachs
Lord Justice Widgery and
Lord Justice Plowkan
Mr. A.A. GRANT (instructed by Messrs. Menasse Ralph Freeman & Tobin) appeared on behalf of the Appellant Defendant.
Mr. ANTHONY THOMPSON (instructed by Messrs. Bestford & de Lattre) appeared on behalf of the Plaintiff Respondent.
These cross appeals are from the judgment of his Honour Judge Ifor Lloyd given at Wandsworth County Court on the 28th November 1968. They concern an unusual set of facts. The plaintiff, a Nigerian, was at all material times the occupant of a flat which was a regulated tenancy under the Rent Acts. He was tricked out of that occupancy by a blatant fraud perpetrated by the defendant landlord, a West Indian, and his wife. Hence this litigation which raised interesting questions as to the causes of action open to the tenant and as to the measure of damages he can recover having regard to his not having suffered any specific special damage.
The facts fall within quite a narrow compass; in July 1965 the plaintiff was granted a weekly tenancy by the defendant, who is the landlord, of a flat in a house, No. 10 Duncan Road, Richmond, in which the landlord also resided. There is no suggestion that the plaintiff was other than a good tenant; but on the 10th December, 1965, he was, for reasons found by the County Court Judge to be obscure, served with notice to quit. The plaintiff then claimed the benefit of the Rent Acts. The notice expired on the 15th January, 1966, but the plaintiff continued in occupation.
On the 15th February the defendant and his wife, from whom he appears to have been separated, and who also appears on that date not to have been personally known to the plaintiff, combined in a piece of trickery. The plaintiff was invited to go to 11 Norton Gardens, Norbury, to see a lady who posed as Mrs. Williams. She was in fact the defendant's wife. He was persuaded to inspect alternative accommodation at that address. He was content with that accommodation! he arranged to move into it, and he handed to Mrs. Williams a cheque for £6. 10s.0d., which represented two weeks rent in advance. (It is to be noted that that cheque was never cashed.) On the 19th February the plaintiff and his wife, who was eight months pregnant, together with a friend of theirs, went in a van with the plaintiff's furniture to that address where the alternative accommodationhad been booked. They were unable to obtain entry. After waiting a considerable period, they went to the police. Then they went to the premises where the friend who had accompanied them lived. There the plaintiff and his wife stayed with their friends for some weeks before finding fresh accommodation. They were not charged for the premises which they occupied at the friend's house.
I now return to the moment when the plaintiff went back to the defendant's premises some time after finding he could not get into 11 Norton Gardens. There he saw the defendant's wife, Mrs. Adams, whom he has identified as being the "Mrs. Williams:" seen on the 15th February, The defendant landlord refused to speak to the plaintiff and locked himself in his rooms. The plaintiff went to a solicitor and placed his case on record in correspondence.
Reverting to facts relevant to the question of quantum of damages, there is no evidence that the plaintiff after leaving his friend had for new accommodation which he then acquired at Stormont Road to pay any more rent than he had had to pay at 10 Duncan Road. Indeed no financial special damage of any kind is alleged in the particulars of claim, nor was there any evidence of such damage given at the trial. On the other hand, it appears that the accommodation occupied by the plaintiff and his wife at the new address was considerably less commodious than his flat at 10 Duncan Road. It also appears from the evidence that the accommodation at the new address is unlikely to be as securely protected by the Rent Acts as was his previous accommodation.
As regards what the defendant did with the flat at No. 10 Duncan Road after thus obtaining possession of it, there is evidence that within a short time he let it furnished to some new tenants. It also appears that he charged the new tenants a higher rent, though what proportion of it was attributable to the furniture is not in evidence. It also appears that in due course he started negotiating for the sale of his house to, Ithink the Greater London Council. It does not appear when those negotiations started, but they in fact bore fruit within a year, and it is a fair Inference that when he eventually disposed of the house he got rather more than he would have done had there still been residing in those premises as a Rent Act protected tenant the plaintiff, who was originally informed that he might well be there for some three years.
When judgment fell to be delivered the learned County Court Judge wan called upon to consider four causes of action which by the close of argument were being relied upon by the tenant. These were; breach of covenant of quiet enjoyment; wrongful eviction (alleged as a separate tort); trespass; and deceit. For breach of the covenant of quiet enjoyment he gave judgment for the plaintiff for £100, stating; "although there is no evidence to show any direct financial loss consequential on the breach, since the friend Iquomola did not charge the plaintiff anything for putting him up temporarily for three weeks or thereabouts, I think that the plaintiff is entitled to recover damages for the inconvenience and discomfort to which he was put and also for the loss of his protected tenancy of his flat at Richmond: He dismissed the claim made for wrongful eviction and trespass. As regards the claim for deceit, he awarded £100 exemplary damages to be added to the £100 for the breach of covenant for quiet enjoyment. Judgment was thus entered for the plaintiff for £200 and costs.
The landlord now appeals from the judgment entered for the above sums, asserting that none of the causes of action had been established. Alternatively in regard to the award of exemplary damages for the deceit he contends that even if that cause of action was established, no such award should have been made; and in addition he asserts that the sums of £100 for compensatory and exemplary damages were each excessive. The tenant cross appeals against the dismissal of his claim for wrongful eviction and trespass.
Having regard to the course of proceedings in this Courtand the concessions made by counsel, it is convenient first to deal with the action for deceit, which is here a realistic cause of action upon which (for reasons which will appear later) all the relevant heads of damage can be dealt with. The first question is to decide whether a cause of action in deceit was established. It appears to me quite clear that once the fraud was proved, the cause of action became complete upon it being shown that the defendant secured by means of that fraud something of value, that is to say, possession of the flat at 10 Duncan Road by fraudulently inducing the plaintiff to surrender it. Possession of rent-protected premises is, of course, valuable property. Thus the first point taken on appeal fails.
Once it is shown that the cause of action is complete, the next question is what is the measure of damages proper to compensate this particular plaintiff for that fraud. The loss flowing from the fraud which can be taken into account In accordance with the principles recently enunciated in this Court in Doyle v. Olby (Ironmongers) Ltd. (1969 2 W.L.R, 673) includes, of course, the loss of the protected tenancy. The plaintiff apparently still has not got a tenancy with an equally sure protection, and for that he is entitled to compensation. In addition, he is entitled upon accepted principles to compensation for the physical inconvenience suffered when put in the position to which I have already adverted. Mr. Grant has submitted that in those circumstances the sum of £100 for compensation is excessive. As he has conceded that the matters to be taken into account are those already related, it is sufficient in a case of this sort simply to say that to my mind the sum of £100 is a reasonable quantification of the damages due by way of compensation for the above injuries. On that point, accordingly the defendant's appeal also fails.
Next one comes to a considerably more difficult question; that is as to whether this is a case in which exemplary damages are recoverable, and whether, if so, the sum of £100 was acorrect assessment. The law on exemplary damages having, of course, been profoundly changed by the decision in Rookes v. Barnard (1964 A.C. 1129) how has that change affected the present case?
The first issue which sprang to mind when this appeal was opened was whether in actions for deceit exemplary damages could ever be awarded. There is in the books no case of exemplary damages ever having been awarded for this cause of action, and but for Rookes v....
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...of a cause of action test were the following words of Lord Hailsham at 1076D-F when commenting on an observation of Widgery LJ in Mafo v. Adams [1970] 1 QB 548, at 558G-H, a case of alleged deceit by a private person, a cause of action on its facts clearly outside Lord Devlin's first catego......
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...represents in practice an arbitrary and irrational restriction on the availability of exemplary damages. 56 Perhaps not surprisingly, in Mafo v Adams [1970] 1 QB 548, a case concerning the tort of deceit, Widgery LJ, at pp 558-559, preferred the first of the two interpretations of Lord Dev......
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...would think, to add to the number of torts for which exemplary damages can be awarded. Thus I disagree with the dictum of Widgery L.J. in Mafo v. Adams [1970] 1 Q.B. 548, 558 (which, for this purpose, can be treated as an action for deceit) when he said: 'As I understand Lord Devlin's spee......