Wandsworth London Borough Council v Osei-Bonsu
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SIMON BROWN,LORD JUSTICE PILL,LORD JUSTICE THORPE |
| Judgment Date | 22 October 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J1022-5 |
| Docket Number | CCRTF 97/0067 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 October 1998 |
[1998] EWCA Civ J1022-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE COMPSTON)
Royal Courts of Justice
Strand
London WC2
Lord Justice Simon Brown
Lord Justice Pill
Lord Justice Thorpe
CCRTF 97/0067
MR J MANNING (Instructed by Judge & Priestley of Justin House, 6 West Street, Bromley BR1 1JN) appeared on behalf of the Appellant
MR J LUBA (Instructed by Anthony Gold, Lerman & Muirhead, New London Bridge House, 25 London Bridge Street, London SE1 9TW) appeared on behalf of the Respondent
Thursday, 22nd October 1998
This appeal raises a number of difficult issues under ss. 27 and 28 of the Housing Act 1988. Before these can even be identified, however, it is necessary first to set out the essential facts of the case. They are as follows.
On 20th March 1989 the appellants (Wandsworth) granted to the respondent and his wife a joint secure tenancy of 166 Coteford Street, SW17, a 2-bedroom council house (the property). Having moved in initially with their two children, the respondent and his wife were joined in about October 1989 by the wife's three other children who had been living until then with her sister in Ghana.
On 9 th January 1990 the wife and five children left the property and moved into bed and breakfast accommodation. She complained that the respondent had been violent towards her for some time, that she was frightened of him, and that she could no longer continue to live with him. The following day she obtained ex parte relief against him and then, at an inter partes hearing before Judge White on 22 nd January, an order that he should not assault, threaten or molest her, together with an ouster injunction requiring him to leave the property by 5 th February.
On 9 th February Wandsworth wrote to the wife's solicitors stating:
"This Council would not be prepared to effectively create two tenancies by allowing [the wife's] former co-habitee to remain at 166 Coteford Street and transferring her to alternative accommodation. I would be prepared to recommend that she be offered a transfer to alternative accommodation only if an order from a court is made either assigning the tenancy to her or requiring her former co-habitee to quit the premises thus enabling her to give us vacant possession of same."
The tenant's obligations under the lease included this:
"(19) DOMESTIC VIOLENCE
Not to do or cause to be done or threaten to do or cause to be done any act of violence which may or will prevent a joint tenant … or the children of any such person, from continuing peaceably to live in the dwelling. It shall be conclusive evidence of a breach of this condition if a Court Order is made (otherwise than on an ex parte application) restraining a tenant permanently or temporarily from living in the dwelling or from assaulting or otherwise molesting the other joint tenant …"
Following the respondent's failure to vacate the property as ordered on 5 th February, the wife issued committal proceedings for hearing on 22 nd February. On 21 st February, however, the respondent did vacate, handing the keys to his wife's solicitors. Accordingly on 22nd February no committal order was sought. Although at court that day the wife's solicitors returned the keys to Wandsworth, the respondent expressly refused to surrender the tenancy.
On 26 th February Wandsworth "caged" the property (i.e. secured it against intruders and squatters) and set in train the wife's transfer to alternative accommodation.
On 8 th March the respondent's solicitors told Wandsworth of their intention to apply for the ouster injunction against him to be discharged.
On 30 th April the wife served a notice to quit to expire on 14 th May 1990. This was, of course, short notice, less than the 28 days required to be given under the general conditions of the tenancy agreement and specified also by s.5(1)(b) of the Protection from Eviction Act 1977 (the 1977 Act). Given, however, that the respondent was at the time subject to an ouster injunction and that the wife and children were in bed and breakfast accommodation awaiting permanent transfer, Wandsworth treated the notice as valid and accepted it.
On 11 th May, as earlier forewarned, the respondent applied for the ouster order to be discharged.
On 20 th May a new tenancy was granted to the wife in Roehampton.
Shortly afterwards, i.e. about a week after 14 th May when the short notice to quit expired, Wandsworth formally repossessed the property. There remains a dispute as to whether at the time the respondent still had any effects in the property.
On 18 th June the ouster order was discharged by consent whereupon the respondent attended at Wandsworth's offices and asked to be readmitted to the property. His request was refused. The property had already been offered to a Ms Jackson (an unmarried mother with a child). Wandsworth's officers took advice from their lawyers and concluded that the wife's short notice to quit had validly determined the tenancy and that they were accordingly entitled to re-let the property as proposed.
On 2 nd July 1990 the property was duly let to Ms Jackson.
On 23 rd August 1991 the respondent commenced proceedings seeking a declaration that he remained a joint tenant of the property. That action was dismissed on 1 st December 1992 by Miss Assistant Recorder Presiley Baxendale QC who held that Wandsworth had been entitled to accept the wife's short notice to quit. On 22 nd March 1993, however, the Court of Appeal decided the identical point to contrary effect in Hounslow LBC v Pilling [1993] 1 WLR 1242 with the result that the respondent's appeal from Miss Baxendale's decision was allowed by consent, Mr Registrar Adams on 28 th October 1993 ordering:
"That it be and is hereby declared that until 2 August 1993 the applicant was and remained the joint tenant of 166 Coteford Street which tenancy had not prior to that date been validly determined by notice to quit or otherwise howsoever."
Meantime, on 1 st July 1993, Wandsworth had caused the wife to serve a second notice to quit, this one giving the full 28 days required, a notice expiring on 2 nd August 1993.
In September 1994 Ms Jackson's tenancy ended and in December 1994 the property was again re-let.
The present proceedings were begun, again in the Wandsworth County Court, in September 1995. The claim this time was for damages. These were sought both at common law for trespass and also pursuant to ss.27 and 28 of the Housing Act 1988 (the 1988 Act). They included aggravated and exemplary damages. The respondent alleged too that he had lost a variety of possessions through being locked out of the property and claimed some £4,000 on this account.
Judgment was given by Judge Compston on 18th December 1996 after a three day hearing. The plaintiff was awarded statutory damages of £30,000, common law damages for certain additional accommodation expenses of £282.94, and interest of £50. His claim for loss of possessions was adjourned with liberty to restore and reserved to the same judge. In addition it was "declared that the plaintiff is and remains a tenant of 166 Coteford Street, London SW17."
Before us now is Wandsworth's appeal against that order. What are at issue are (a) the statutory damages award and (b) the declaration that the respondent still remains a tenant of the property.
Before finally turning to identify the specific grounds of appeal it is convenient next to set out the critical provisions of the 1988 Act in play:
"27. (1) This section applies if, at any time after 9 th June 1988, a landlord (in this section referred to as 'the landlord in default') or any person acting on behalf of the landlord in default unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises.
(2) This section also applies if, at any time after 9 th June 1988, a landlord (in this section referred to as 'the landlord in default') or any person acting on behalf of the landlord in default —
(a) attempts unlawfully to deprive the residential occupier of any premises of his occupation of the whole or part of the premises, or
(b) knowing or having reasonable cause to believe that the conduct is likely to cause the residential occupier of any premises —
(i) to give up his occupation of the premises or any part thereof, or
(ii) to refrain from exercising any right or pursuing any remedy in respect of the premises or any part thereof,
does acts likely to interfere with the peace or comfort of the residential occupier or member of his household, or persistently withdraws or withholds services reasonably required for the occupation of the premises as a residence,
and, as a result, the residential occupier gives up his occupation of the premises as a residence.
(3) Subject to the following provisions of this section, where this section applies, the landlord in default shall, by virtue of this section, be liable to pay to the former residential occupier, in respect of his loss of the right to occupy the premises in question as his residence, damages assessed on the basis set out in section 28 below.
…
(5) Nothing in this section affects the right of a residential occupier to enforce any liability which arises apart from this section in respect of his loss of the right to occupy premises as his residence; but damages shall not be awarded both in respect of such a liability and in respect of a liability arising by virtue of this section on account of the same loss.
(6) No liability shall arise by virtue of subsection (3)...
To continue reading
Request your trial
-
Sheffield City Council v Wall and Others
...Ingham. That it is their right to serve a notice to quit, rather than the Council, does not, however, appear to be consistent with Osei-Bonsu v Wandsworth LBC [1999] 1 WLR 1011. 59 The facts of Osei-Bonsu were that the local authority granted the plaintiff and his wife a secure joint tenanc......
-
Loveridge v Mayor and Burgesses of the London Borough of Lambeth
...exercise, regard to the effect of one assumption is halted by the terms of another. 28 The decision of the Court of Appeal in Osei-Bonsu v Wandsworth LBC [1999] 1 WLR 1011 relates to another rare example of an unlawful eviction of a secure tenant by a local authority. As here, it was as a ......
-
Kalas v Farmer
... ... (CIVIL DIVISION) ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT (Mr Leighton Williams QC) ... Before: ... ...
-
Joy Smith v Mohammed Riaz Khan
...to accept damages would mean that his tenancy would be deemed to have come to an end when he was unlawfully evicted: see Osei-Bonsu v Wandsworth London Borough Council [1999] 1 WLR 1011 at page 1025 D-E. 37 Damages for trespass are not restitutionary in the same way. They are payable to com......