McCall v Abelesz

JurisdictionEngland & Wales
Judgment Date19 December 1975
Judgment citation (vLex)[1975] EWCA Civ J1219-4
Docket NumberPlaint No. 7451997
CourtCourt of Appeal (Civil Division)
Date19 December 1975
Leonard McCall
Plaintiff (Appellant)
Erno Abelesz and Jacob Ostreicher (Trading as Riverside Property Services)
Defendants (Respondents)

[1975] EWCA Civ J1219-4


The Master of The Rolls (Lord Denning)

Lord Justice Ormrod and

Lord Justice Shaw

Plaint No. 7451997

In The Supreme Court of Judicature

Court of Appeal

On Appeal from The Willesden County Court (His Honour Judge Counsell)

THE FIRST DEFRNDANT (Respondent) appeared in person.

MR. P. CLARKE, for MR. J.P. SINGER (instructed by Messrs. Alexander & Partners, Solicitors, London) appeared on behalf of the Plaintiff (Appellant).

MR. HUGH CARLISLE was present as amicus curiae.


Mr. McCall comes from Dominica in the West Indies. He has been here for 17 years. In March 1968 he became the tenant of a room on the ground floor of 3 Claremont Road, N.W.2. There were other tenants in the house. They shared a lavatory and bathroom with Mr. McCall.


It was a furnished room. There was a gas-cooker for which he had to put coins in the gas meter. There was also electricity for light for which he had to put coins in the electricity meter. These coins were for the use of the landlord. The Gas Board and the Electricity Company supplied the landlord and he supplied the tenants. They charged the landlord for all the gas and electricity supplied to the whole house. The landlord recouped himself by taking the coins from the meters. There was also a water supply to the premises, which was paid for by the landlord.


In May 1973 Mr. Abelesz and Mr. Ostreicher bought the premises. They bought it "blind" at an auction sale without even going to see it. They made no inquiries about the gas and electricity but assumed that the tenants had meters operated by coins. They left everything to their manager - Mr. Arran. Mr. McCall paid him rent of £3.5C a week by post to the landlords. He paid quite regularly.


A few months later the new landlords found themselves faced with a large bill for gas supplied to the house. It was for £435.40. Most of it had accrued before they bought the house. The landlords were aggrieved about this bill. The Gas Board threatened to out off the gas unless this big bill was paid. The landlords did not pay it. So in October 1973 the Gas Board cut off the gas from the house.


In December 1973 the Public Health Authorities drew the attention of the landlords to the condition of the house.Mr. Arran, the landlords' manager, went to see it then for the first time. Be found three tenants in the house. He saw the meters in the rooms, but in the rooms of the other tenants the locks on the meters had been broken. The coins had been taken. But in Mr. McCall's room the locks were intact and the money there. Mr. Arran suggested to the tenants that they should ask the Gas Board to give them a direct supply of gas, but the Gas Board declined to do so. They preferred to look to the landlord.


Things went from bad to worse. In March 1974 the other two tenants left, owing about £200 in rent, which they never paid. So Mr. McCall was left there alone. About this time the electricity was out off, too, as well as the gas. The water supply was cut off as well. The landlords offered Mr. McCall alternative accommodation in Randolph Avenue, but he did not take it because it was a higher rent and in a different area.


At length, however, the landlords did pay £100 deposit to the Gas Board and got the gas restored. They also got the electricity and water restored. But Mr. McCall got legal assistance and took proceedings in the County Court. He alleged that the landlords had harassed him contrary to Section 30 (2) of the Rent Act, 1965, and claimed damages. At the first hearing it was suggested that his claim might be put in breach of contract. But, after consideration, his Counsel decided to confine it to damages for breach of Section 30 (2). The judge awarded damages. He said that from March 1974 the landlords considered it no longer an economic proposition to let to Mr. McCall: so that they sought to persuade Mr. McCall to leave in such a manner as to constitute harassment on their part: and it was their intention to see whether it was possible to persuade him to leave the property by inactivity on theirpart. "I therefore find", he said, "that the landlords were withholding services that were reasonably required by the tenant, and I make this finding with regard to gas, electricity and water and the but he felt that a measure of blame attached to Mr. McCall for failing to deal with his problems. He said that it was not a case for aggravated damage. He awarded £75 damages.


Mr. McCall appealed to this Court. He wanted to get more damages. The landlords put in a cross-appeal. They submitted that Section 30 (2) only created a criminal offence and did not give a civil remedy in damages. The landlords did not instruct counsel: but, as the point raised was one of public importance, this Court sought the help of an amicus curiae. Mr. Carlisle came, and we are grateful to him for his assistance.


Mr. Singer, for the tenant, brought to our attention one or two text books in which it is suggested that there is a civil remedy for damages for harassment under Section 30 (2) of the Rent Act, 1965: and he told us that he had several cases in which judges of County Courts had awarded damages for harassment under section 30 (2) of the Rent Act, 1965: but in most of them, the point had been assumed without argument. This case is brought to test the position.


With regard to Section 30 itself, that section says:


"…(2) If any person with intent to cause the residential occupier of any premises -

(a) to give up the occupation of the premises or any part thereof; cr

(b)…… does acts calculated to interfere with the peace or comfort of the residential occupier or members of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence, he shall be guilty of an offence".

Subsection (3) contains provisions for fine or imprisonment.

Subsection (4) says: "Nothing in this section shall be taken to prejudice any liability or remedy to which aperson guilty of an offence thereunder may be subject in civil proceedings".


First I would consider the Section as if subsection (4) were not there. It creates a criminal offence punishable by fine or imprisonment. It does not give a civil remedy in damages, Nevertheless it would be possible for the courts to hold that there was a civil remedy, but they would only do so if they saw on examination of the whole Act that Parliament had so intended. The classic example where a criminal offence was held to give a remedy in damages is Groves v. Lord Wimbourne (1898) 2 Queen's Bench, page 402: and when it was held not to give a remedy in Cutler v. Wandsworth Stadium (1949) Appeal Cases, page 398. So difficult is the question that Lord du Parcq made a plea that Parliament should state explicitly whether it intended that there should be a civil remedy or not - see 1949 Appeal Cases at page 410.


Second, I turn to consider subsection (4). It is intended to comply with the plea made by Lord du Parcq. In some statutes Parliament has expressly stated that the breach of a particular statutory obligation shall give rise to a civil remedy in damages. There are three instances: Section 43 (8) of the Copyright Act 1956; Section 3 (2) of the Consumer Protection Act, 1961 and Section 4 (2) of the Resale Prices Act, 1964.


But I have found no statute in which it has been expressly stated that a criminal offence shall not give rise to a civil remedy in damages. The draftsmen have used a different technique. It is illustrated by the Protection from Eviction Act, 1964. It says in Section 1 (3) that "If any person contravenes the provisions of this sub-section he shall, without prejudice to any liability or remedy to which he may be subject in civil proceedings, be liable on summary conviction to a fine or imprisonment".


Similarly in the Caravan Sites Act, 1968, Section 3 (2) says "A person guilty of an offence under this section shall, without prejudice to any liability or remedy to which he may be subject in civil proceedings, be liable on summary conviction to a fine", etc.


In those sections the words "without prejudice" etc. preserve any liability or remedy which exists apart from the subsection. The Shorter Oxford Dictionary gives the meaning of "without prejudice" as "without detriment to any existing right or claim". So it preserves existing rights, but excludes any new rights. By putting in the clause "without prejudice" the draftsman shows that that section itself only gives rise to a criminal offence, and not to civil proceedings.


Turning now to subsection (4), it is to be construed in the same way as those sections. It means that nothing in Section 30 is to prejudice any liability or remedy in civil proceedings to which a person is subject apart from the section. It thus preserves any liability or remedy which already exists in civil proceedings, but does not create any new liability or remedy in civil proceedings.


Furthermore, I see no need to give any new civil remedy for harassment. As I understand it, the law already gives a perfectly good civil action for damages. In the present case, where the gas and electricity were cut off, the tenant could sue the landlord for breach of the implied term that he would supply the gas and electricity through the meters so long as the tenancy continued. I should have thought, too, that it would be a breach of the covenant for quiet enjoyment. This covenant is not confined to direct physical interference by the landlord. It extends to any conduct of the landlord or his agents which interferes with the tenant's freedom of action in exercising his right as tenant: see Kenny v. Preen (1963) 1 Queen's Bench at page 513by Lord...

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