Revenue and Customs Commissioners v Aimia Coalition Loyalty UK Ltd (formerly Loyalty Management UK Ltd)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Auld |
| Judgment Date | 20 September 2007 |
| Neutral Citation | [2007] EWCA Civ 938 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B5/2007/0562 |
| Date | 20 September 2007 |
[2007] EWCA Civ 938
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WEST LONDON COUNTY COURT
(DISTRICT JUDGE NICHOLSON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Auld
Case No: B5/2007/0562
Mr Patrick Ground QC (instructed by Legal Action) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
This application concerns a dispute between Mr Wendell Tsao, the applicant landlord, and Mr Danilo Pempengco, the respondent tenant, for possession of the tenant's property, and who should be liable for its cost of repair. It involves a long tangled tale of dispute, extending over some 20 years, as to the condition of the property and who was responsible for it. The landlord seeks permission to appeal an order of District Judge Nicholson, sitting in the West London County Court on 14 December 2006. In the judgment giving rise to that order, the judge found for the landlord in the sum of £33,458.99 for arrears of rent, and for the tenant in the sum of £25,094.24 for damages for disrepair. He dismissed the landlord's claim for possession of the tenanted flat, and he granted an injunction requiring the landlord to carry out various remedial works to the property, including the replacement or making good of damp courses, and other remedial measures to stop rising damp in the premises. He ordered the landlord to pay the tenant's costs as to 80%, subject to detailed assessment. So, in substance, the landlord's claim for arrears of rent, though technically correct, was a pyrrhic victory, given the amount of damages awarded against him for failure to keep the property in repair, and the injunction imposed that he carry out a number of substantial remedial works.
The landlord, by this application for permission to appeal, also seeks a stay of execution, on the basis that the remedial works subject to the injunction have, in fact, already been carried out many years ago by the local authority. The factual background is set out in the judgment of District Judge Nicholson. In summary, the tenant is a protected tenant under the Rent Act of 1997, and has been in occupation of the property since September 1978, over 20 years; and the property, for a considerable period of that time at the very least, has been in a serious state of disrepair. The landlord's case has been that the disrepair is attributable to the tenant's behaviour—in particular, in relation to the damp problems invading the flat. His case before the judge was that the tenant had caused all these damp problems, by hanging up wet washing and allowing it to drip on the floor, bathing in a way so that water spilt onto the floor, and also for not securing adequate ventilation.
In the course of the 20 or so years of this running saga, the landlord instituted proceedings against the local authority, alleging that it was responsible for the disrepair because it had performed work—in particular, in relation to damp-proofing of the floor, pursuant to statutory notices—negligently. It is clear by then, not only from the initial notices which led to that work being undertaken by the local authority, but also by the landlord's perception that it had not done them properly, for whatever reason, that the landlord was on notice that there were damp problems there, and, on his understanding, that they were due to failure to provide proper damp-proofing provisions beneath the floors of the flat. The tenant's case, which he pleaded in his defence, was that the landlord had failed negligently, or contrary to section 4 of the Defective Premises Act of 1972, to remedy the disrepair of which he knew or ought to have known. And there was also a counterclaim for damages, for breach of the landlord's implied obligation to keep the property in good repair. There were a number of issues before the judge: one, of limitation, which has not led to any continuing dispute. He ruled that the claim was limited to a period after 12 June 1989, proceedings having been initiated in June 1995, and that the counterclaim was similarly limited, running from a period after July 1989, the counterclaim having been filed in July 1995.
As to the landlord's claim for rent arrears, as I have indicated, the judge decided that the tenant was responsible to pay some £34,500 odd, minus deductions, a small amount of unpaid rent, resulting in a figure of £33,500 odd. As to the issue raised by the tenant's response to the claim for those arrears, and to his counterclaim for damages for breach of obligation to repair, the judge had a considerable body of evidence, going in large part, but not solely, to the question of damp penetration upwards into the floor of the flat. The claimant, Mr Tsao (the landlord), conducted the hearing before the judge on his own and prepared for it on his own; and was clearly aware, some significant time before trial, that on the principal issue as to the cause of damp (which was undoubtedly present in the flat in an unacceptable degree), the battleground was whether the structure of the flat was such that it allowed water to enter upwards through the ground floor, causing, or largely contributing to, all the damp problems of which complaint had been made over the years; or whether the real cause (or a substantial contribution to the cause) of the damp was not damp penetration of that sort, but from the tenant's aquatic habits—the way in which he bathed, did his washing, and otherwise lived in the flat.
However, on that issue, of which Mr Tsao was fully aware, he called no expert evidence. There was expert evidence in the case, principally in the form of a report by Mr Y. M. Levin, a chartered surveyor, on behalf of the tenant, following an inspection in November 2004. The salient parts of his report, for the purposes of this application, are that he concluded that there was damp penetration for want of sufficient waterproof membranes, giving rise to the main body of dampness in the flat and its complications. In reaching that view, not only was he relying on his own examination, but he had the benefit of a report prepared by experts on behalf of Mr Tsao some years before, reaching the very same conclusion on his behalf, in the claim that he had then made against the local authority for failure to carry out its statutory duty to make the premises habitable. There was also oral evidence from Mr Levin, all of which the judge rehearsed in his judgment: evidence of cross-examination in particular, in which, as in his report, he acknowledged that there was likely to be some...
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