Ms Zoe Youssefi v Mrs Joan Mussellwhite

JurisdictionEngland & Wales
JudgeLady Justice Gloster,Lord Justice Vos,Lord Justice Moore-Bick
Judgment Date02 July 2014
Neutral Citation[2014] EWCA Civ 885
Docket NumberCase No: B5/2012/2404
CourtCourt of Appeal (Civil Division)
Date02 July 2014

[2014] EWCA Civ 885

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WINCHESTER COUNTY COURT

SITTING AT SOUTHAMPTON COUNTY COURT

MR RECORDER NORMAN

9WC00850

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moore-Bick

Lady Justice Gloster

and

Lord Justice Vos

Case No: B5/2012/2404

Between:
Ms Zoe Youssefi
Appellant
and
Mrs Joan Mussellwhite
Respondent

Mr Thomas Jefferies (instructed by Direct Access) for the Appellant

Mr James Browne (instructed by Davies Battersby Solicitors) for the Respondent

Hearing dates: Wednesday 26 th February 2014

Further materials received on 14 March 2014

Lady Justice Gloster

Introduction

1

This is an appeal from the judgment of Mr Recorder Norman, sitting in the Winchester County Court, dated 28 August 2012 ("the judgment") whereby he ordered that the defendant's lease ("the lease") of 6 Romsey Road, Winchester ("the property") dated 5 May 1994 was terminated in accordance with section 64 of the Landlord and Tenant Act 1954 ("the 1954 Act") without the grant of a new tenancy. The judge ordered the defendant to pay 75% of the claimant's costs and to pay the sum of £35,000 on account of these costs by 20 November 2012.

2

The claimant in the action, and the respondent on this appeal, is Mrs Joan Mussellwhite ("the respondent"). She is the current lessor of the property, the original lessor having been her late husband, Mr Alan Mussellwhite. The defendant in the action, and the appellant on this appeal, is Ms Zoe Youssefi ("the appellant"). The property is described in the lease as a "dwelling house shop and premises". The premises included a rear garden or yard. The term of the lease was 15 years from 1 April 1994. It was common ground between the parties that, when the term expired on 31 March 2009, the lease continued pursuant to the provisions of Part II of the 1954 Act. Although there appears to have been some dispute as to whether any trading activity was in fact carried out at the property, the respondent did not dispute that the property as at the date of the trial was occupied for the purposes of a business carried on by the appellant and therefore was within the protection of the 1954 Act. The issue which the judge had to decide was whether the respondent, as landlord, had established to the satisfaction of the court any of the grounds set out in her notice served pursuant to section 26(6) of the 1954 Act, thereby entitling the judge to make an order for the termination of the tenancy without the grant of the new tenancy under section 29(4) of the 1954 Act. The issue on this appeal is whether, in certain particular respects, the judge was right to conclude that the respondent had established the requisite grounds to obtain an order under section 29(4).

Procedural history

3

On 31 March 2009 the appellant served a notice on the respondent under section 26 of the 1954 Act requesting a new tenancy which was to commence on 26 January 2010. By that notice she sought a new 15 year term on substantially the same terms as the existing lease at a rent of £5,000 per annum. On 13 May 2009 the respondent's solicitors served a notice opposing the request for a new tenancy pursuant to section 26(6) of the 1954 Act. The respondent relied upon the following grounds of opposition (as respectively set out in subsections 30(1)(a), (b) and (c) of the 1954 Act):

i) "(a) where under the current tenancy the tenant has any obligations as respects the repair and maintenance of the holding, that the tenant ought not to be granted a new tenancy in view of the state of repair of the holding, being a state resulting from the tenant's failure to comply with the said obligations;" this was referred to in the judgment as Ground A;

ii) "(b) that the tenant ought not to be granted a new tenancy in view of her persistent delay in paying rent which has become due;" this was referred to in the judgment as "Ground B";

iii) "(c) that the tenant ought not to be granted a new tenancy in view of other substantial breaches by her of her obligations under the current tenancy, or for any other reason connected with the tenant's use or management of the holding;…" this was referred to in the judgment as "Ground C".

4

On 14 September 2009 the respondent issued proceedings seeking an order under section 29(2) of the 1954 Act for the termination of the tenancy without the grant of a new tenancy.

5

The trial was heard over five days starting on 25 June 2012. That date had been fixed following numerous adjournments, mainly at the appellant's request. The appellant instructed a member of the Bar to represent her on the first day in order to seek an adjournment which was refused by the judge. Counsel then informed the Court that he had no instructions to represent the appellant at trial and withdrew. Thereafter the appellant represented herself. The respondent was represented by counsel.

6

For the remainder of the first day and the morning of the second day the respondent called her evidence. The relevant witnesses were: the respondent herself, a Mr Charles Denny (who owns and runs a business from the neighbouring property), the respondent's daughter Ms Jean Gregory (who also holds a power of attorney granted by the respondent in relation to this matter), and the respondent's son, Mr Robert Mussellwhite. All these witnesses were cross-examined by the appellant. At approximately 2.30 p.m. on the second day the respondent's evidence was completed. The third day had been set aside for expert evidence. At this point the appellant informed the judge that she had decided not to give live evidence herself. Counsel for the respondent informed the Court that if the appellant did not give evidence, he would be submitting in closing that her reason for refusing to give evidence was that she did not believe her evidence would stand up to cross-examination. The judge adjourned the matter at that point to give the appellant a break and an opportunity to reflect on the question whether she wished to give evidence or not. He was prepared to allow her to postpone her final decision on the matter until after the expert evidence had been heard.

7

On the third day, the expert chartered surveyors appearing respectively for each side (Mr Sealey for the appellant and Mr Eyley for the respondent) gave live evidence and were cross-examined. Their evidence took up virtually the whole of the day. Where the opinions of the two experts differed, the judge preferred the evidence of the respondent's expert, Mr Eyley, on the grounds that he was more detached and independent, whereas the judge considered that he "was not getting the same independent judgment" from Mr Sealey.

8

On the morning of the fourth day of the trial the appellant confirmed her decision not to give live evidence. Closing submissions were made which were completed on the morning of the fifth day. The judge reserved judgment.

9

Judgment was delivered on 28 August 2012.

10

In relation to Ground A, the judge held that, in relation to the eight items alleged by the respondent to evidence disrepair, only the creeper growth on the rear elevation of the premises was sufficiently serious and substantial for the purposes of Ground A; the other alleged item of disrepair, namely decoration of the ground floor shop, was not sufficiently substantial by itself but was taken into account. It is relevant to quote the material paragraphs of the judgment in relation to Ground A:

"52. Moreover, I approach this case upon the basis that the standard of repair expected of the tenant was not high; more particularly that I have to find that the state of repair of the holding was sufficiently impaired even if as a result of the failure of the tenant to comply with her repairing obligation to require me, as a matter of judgment to conclude that the tenant ought not to be granted a new tenancy.

53. Aside from the express covenants to repair, the tenant had an obligation to treat and use the premises in a tenant like manner. I note and accept the reliance by Mr Browne in paragraph 24 of his skeleton argument on paragraph 13.020 of Woodfall. I accept therefore that the tenant was under an obligation as a matter of routine maintenance to control weeds, creeper and plant growth and to keep the rear yard free of debris …

55. I deal with each of them in turn: …

Creeper Growth

Mr Eyley's evidence on this is summarised in the right-hand column on pp 2/609 and 611. In essence his evidence is that there is unrestricted plant growth covering the wall concealing the condition of the walls and the downpipe, and areas of the eaves and roof. This evidence was not substantially contradicted. The failure to control the plant growth is not of itself a breach of the Tenant's repairing covenant. It is however, in my judgment, a breach of the Tenant's implied covenant to use the premises in a tenant-like manner. It obscures the condition of the exterior of the property, risks causing damage to the exterior and makes it impossible to examine the exterior to determine its state and condition. I consider that it can properly be said that the covering of the exterior walls with climbing plant is an aspect of the state of repair of the holding. The holding ought not to be in that state of repair and it is caused to be so as the result of the breach by the Defendant of her obligation to use the premises in a tenant like manner. In this connection that is an obligation which can properly be said to relate to the repair and maintenance of the holding (within the meaning of Section 31 (a) of the 1954 Act). I therefore find that the exterior plant growth is an element of the state of...

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  • Harmohinder Singh Gill (as Trustee of the Gillcrest UK Pension Scheme) v Lees News Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 12 October 2023
    ...judgment to which the judge was entitled to come.” 58 One possible outlier is the decision of this court in Youssefi v Musselwhite [2014] EWCA Civ 885, [2014] 2 P & CR 14. In that case the landlord opposed the grant of a new tenancy on grounds (a), (b) and (c). Gloster LJ was referred to, ......

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