Uddin and Another v London Borough of Islington

JurisdictionEngland & Wales
JudgeLord Justice Lewison,Lord Justice Ryder,Lord Justice Pitchford
Judgment Date10 March 2015
Neutral Citation[2015] EWCA Civ 369
CourtCourt of Appeal (Civil Division)
Date10 March 2015
Docket NumberB2/2014/1764

[2015] EWCA Civ 369

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT

SITTING AT CLERKENWELL AND SHOREDITCH

(HIS HONOUR JUDGE MITCHELL)

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Pitchford

Lord Justice Ryder

B2/2014/1764

Between:
Uddin & Anr
Appellant
and
London Borough of Islington
Respondent

Miss S Rai (instructed by Devonshire Solicitors) appeared on behalf of the Appellant

Mr N Nicol (instructed by Hopking Murray Beskine) appeared on behalf of the Respondent

Lord Justice Lewison
1

In his judgment handed down on 6 May 2014, His Honour Judge Mitchell awarded Mr and Mrs Uddin £14,680 as damages for breach of repairing obligations on the part of their landlord, the London Borough of Islington. With the permission of McFarlane LJ, Islington appeal on limited grounds, permission having been refused in relation to their more comprehensive grounds.

2

It was common ground that Mr and Mrs Uddin were the joint weekly tenants of 116B Englefield Road, London, N1. Since they were weekly tenants, the tenancy contained the covenants implied by section 11 of the Landlord and Tenant Act 1985. These were, so far as material, covenants by Islington to keep in repair the structure and exterior of the dwelling house including drains, gutters and external pipes.

3

The property compromised in the tenancy was a four bedroomed maisonette in the basement and on the ground floor of a Victorian villa. The Uddins moved in in October 2004 and started to complain about the damp. The greater part of the damages awarded by the judge related to the damp problems.

4

Miss Rai on behalf of Islington submits that damp may be one of three types, (1) penetrating damp usually caused by the defective state of some part of the property and thus subject to the repairing obligation, (2) condensation damp generally caused by inadequate insulation, ventilation and/or heating and thus not caused by a defective state of the property which is the subject matter of the repairing obligation, and (3) rising damp which can be caused by an inherent defect in the property, but that remedying the defect would involve the property being wholly different to the property that was demised or caused by a defective damp proof membrane, which is subject to the repairing obligation.

5

We are concerned with rising damp. I do not, however, consider that Miss Rai's submission about an inherent defect is correct. The mere fact that damp is caused by an inherent defect does not of itself absolve the landlord from liability.

6

That is demonstrated by the case of Elmcroft Developments Ltd v Tankersley-Sawyer [1986] 1 EGLR 47 referred to in Dowding and Reynolds on Dilapidations at paragraph 12–31. That was a case about a basement flat in a Victorian purpose-built mansion block in London. The flat was let for 16 years less three days on a lease containing a landlord's covenant to maintain and keep the exterior of the building and the roof, the main walls, timbers and drains thereof in good and tangible repair and condition. As constructed, the external and party walls of the flat included what had been intended to be a damp-proof course consisting of slates laid horizontally. However, it was ineffective because it was positioned below ground. The flat suffered from extensive rising damp which affected internal plaster, decorations and wood work.

7

The question was whether the landlord was liable to install a damp-proof course. Both the County Court and the Court of Appeal said yes. Ackner LJ said:

"I therefore conclude that the learned judge was wholly right in the decision which he made as to the failure by the appellants to comply with the repairing covenant and their obligation in regard to curing the damp by using the only practical method at this price, namely, injecting silicone into the wall. [Counsel] was at one stage prepared to concede that, as the plaster became saturated (which, of course, it was), his clients had the obligation to do the necessary patching — that is removing — the perished plaster and renewing it. I am bound to say that concession made the resistance to inserting the damp-proof course a strange one. The damp-proof course, once inserted, would on the expert evidence cure the damp. The patching work would have to go on and on and on, because, as the plaster absorbed (as it would) the rising damp, it would have to be renewed, and the cost to the appellants in constantly being involved with this sort of work, one would have thought, would have outweighed easily the cost in doing the job properly. I have no hesitation in rejecting the submission that the appellants' obligation was repetitively to carry out futile work instead of doing the job properly once and for all."

The authors of Dowding and Reynolds go on to comment:

"It is true that in Elmcroft the building had been constructed with what was intended to be a damp-proof course, so that it may be said that in this respect the case is not on all fours with cases where there has never been a damp-proof course. However, it is thought that the position is the same in relation to cases of the latter kind. In Elmcroft, the slate layer in question was ineffective as a damp-proof course and it is difficult to see any sensible distinction between this and cases where there is no form of damp proofing to begin with."

I agree.

8

The first ground of appeal for which permission has been given is that the judge was wrong in relying on reports from surveyors which had been included in the trial bundle and from which he reasoned that there had been remedial measures to deal with damp that had failed.

9

Mr Cockram who reported in May 2004 found evidence of a previous attempt to install a damp-proof course. He also noted existence of small ventilation grilles at a low level in the walls. These, he said, were common features of an osmotic damp-proof course which was a replacement damp-proof course common in the 1980s but not much used today. Often it was found to be problematic. He also noted replacement internal wall plaster incorporating waterproof cement-based render, but noted that the quality of workmanship was poor.

10

Mr Whalley, who reported on behalf of Islington in July 2004, said much the same. He began by saying that:

"It is apparent that there have historically been damp problems externally on the front and rear walls. Osmotic vents have been installed. Internally, there is evidence of replastering of approximately 1.2 metres height in many areas, an indication of rendering works to overcome problems of rising damp."

11

He also said that if a Victorian property had had a damp-proof course, it would normally be formed with slates which were prone to failure over time. He noted that the front and rear walls had knapen siphon tubes, which was a repair system often used in the 1980s to deal with rising dampness.

12

The judge said at paragraph 26:

"The reports of Mr Cockram dated the 21st May 2004 and Mr Whalley of Faithorn Farrell Timms dated the 7th July 2004 are in the trial bundle and I have allowed the parties to rely on them as records of fact. They are not though expert evidence. Their makers were not called to give evidence."

13

Miss Rai says that during the course of the trial the judge said that the reports would only establish that they were written and could not establish the truth of their contents. She goes on to say that during the hearing Mr Nichol, appearing then as now for Mr and Mrs Uddin, urged the court to rely on them as evidence as disrepair. She says that she was not given an opportunity to respond to that point and complains that in his judgment the judge relied on the reports as statements of fact. Mr Nichol disputes this account of the trial. He says the judge engaged in dialogue with both counsel and there was ample opportunity for Miss Rai to raise any points she wished to raise.

14

The judge's description of what he permitted in paragraph 36 of his judgment, which I have read, does not tally with Miss Rai's recollection. There would have, it seems to me, been no point in admitting the reports merely as evidence that they had been written. There could have been no utility in simply doing that.

15

In addition, in paragraph 13 of their defence, Islington asserted:

"The Claimants instructed Harter and Loveless Solicitors and obtained a report of Mr S P Cockram dated the 21st May 2004. The Defendant further obtained a report of Faithorn Farrell Timms dated the 7th July 2004. Works were carried out based on these reports and the commencement of tenancy was delayed before these works."

16

On its face, that is an allegation that the works had been carried out as recommended by the reports. Since Islington's own surveyor recommended a silicone...

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