Williams and Another v Hinton and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gross,Lord Justice Moore-Bick,Lord Justice Lloyd |
| Judgment Date | 14 October 2011 |
| Neutral Citation | [2011] EWCA Civ 241,[2011] EWCA Civ 1123 |
| Docket Number | Case No: 2009/2543,Case No: B5/2009/2066 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 October 2011 |
[2011] EWCA Civ 1123
Lord Justice Moore-Bick
and
Lord Justice Gross
Case No: 2009/2543
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HHJ Gareth Jones
7PC03730
Royal Courts of Justice
Strand, London, WC2A 2LL
Nick Mason (instructed by Guthrie Jones & Jones) for the Appellant
Russell Moffat (instructed by JW Hughes & Co) for the Respondent
Hearing dates: 13/07/2011
INTRODUCTION
This is an application for leave to appeal from the judgment of HHJ Gareth Jones QC, given in the Rhyl County Court ("the County Court"), dated 29 th June, 2009 ("the judgment"), allowing the Respondents' counterclaim for damages for breaches of s.11 of the Landlord and Tenant Act 1985, s.4 of the Defective Premises Act 1972 and the First Respondent's claim for damages for personal injury, plus interest, in the total amount of £12,096.71, plus costs. The Appellants did not attend the trial. In all the circumstances, we grant permission to appeal.
Additionally, by the order of HHJ Farmer QC dated 28 th February, 2011, there has been referred to this Court an application by the Appellants for an injunction to restrain Sheriffs High Court Enforcement Limited ("the bailiffs") from delivering the moneys obtained from the Second Appellant in satisfaction of the judgment debt, to the Respondents and requiring whichever of the Respondents or the bailiffs is in possession of those moneys to pay them into Court. HHJ Farmer QC further ordered that pending resolution of the Appellants' application for the injunction, the bailiffs should retain and should not deal with the £13,069.25 paid to them by the Appellants on the 16 th February, 2011. In the event it is unnecessary to say anything more as to the substance of the claim for an injunction, given that, as sensibly agreed by counsel, it stands or falls with the merits of the appeal. I shall therefore return to it formally at the end of the judgment.
For present purposes, the history can be briefly summarised. By an agreement in writing, the Appellants let a dwelling house, Y Berlian, in Llansannan, Denbighshire ("the property"), to the Respondents, upon an assured shorthold tenancy, for a period of six months from the 11 th April, 2005. On the 3 rd August, 2007, the Appellants issued a claim for possession of the property. On the 20 th October, 2007, the Respondents filed a defence and counterclaim, subsequently amended, claiming damages for disrepair and (by amendment) damages for personal injuries allegedly sustained by the First Respondent. Prior to the matter being listed for hearing, the Respondents vacated the property; accordingly, only the counterclaim remained extant.
So far as concerns the landscape of the somewhat acrimonious legal dispute between the parties, the Respondents complained of disrepair of the property, not acted upon by the Appellants; in consequence, they had withheld rental payments and suffered loss and damage. They further averred that the personal injury sustained by the First Respondent was caused by the condition of the property. For their part, the Appellants attributed the condition of the property to its use or, as they put it, abuse by the Respondents. The personal injury, if sustained by the First Respondent, had nothing to do with the condition of the property.
After a number of abortive listings (see further below), the counterclaim was listed for trial before HHJ Gareth Jones QC, in the County Court on the 29 th June, 2009. In the event, although as already recorded the Appellants did not attend the hearing, the Judge decided to proceed with it – and, again as already recorded, determined the counterclaim in favour of the Respondents and adversely to the Appellants.
THE JUDGMENT
In a careful and clear judgment, the Judge addressed in some detail and in context, the non-attendance of the Appellants. He said this:
" 2. … The Claimants are unrepresented and they have not attended this hearing today, and I have proceeded in this case in their absence…. I have previously considered, on 29 th April, a directions hearing in this case when I adjourned the matter on that occasion because both Mr. Williamses did not attend and a medical certificate had been sent. There has been subsequent correspondence with the court and I shall deal with the effect of that in due course, but I am satisfied that both Mr. Williamses are aware of today's hearing. I have no explanation for their non-attendance, they have chosen not to attend today and having been warned that this hearing was listed today, I have decided ….to proceed in their absence.
9. …..[The Appellants] have issued a number of applications, some of which have been before the courts, one of which, potentially, is still outstanding. The nature of the claims which they have made essentially is to seek a judicial review of the proceedings of this court, that application for judicial review most recently being considered on 11 th September 2008. It is right to say that so far as that application is concerned, His Honour Judge Bidder QC, who sat on this case on that occasion on 11 th September 2008, indicated and gave directions for the further conduct of this case….
10. The application for judicial review was before the court very shortly thereafter, on 22 nd October 2008, when Judge Pelling QC, sitting as a Judge of the High Court, refused the application for judicial review. There was then a renewal, potentially, of that application, by way of an oral hearing applied for by the landlords. That application, I was reminded in correspondence from them dated 26 th May 2009, is before the High Court at present, and I was reminded of that further on 15 th June 2009, when the Williamses attached to correspondence, which they had sent to this court, a copy of an alleged stay of execution from the High Court, which they said that they had received on 29 th May. I have looked through that document very carefully and, indeed the other correspondence which has been sent to me. What in fact the Williamses appear to have done is that they have certainly filed a Notice of Appeal and a further reconsideration of their application for permission to judicially review the original proceedings. So far as I am aware, there has been no stay of execution granted by any superior court. The last correspondence I have seen from the Civil Appeals Office of the Court of Appeal, which is dated 26 th May, indicates that the Williamses made an application on 19 th May seeking permission to appeal the decision to refuse permission to claim for judicial review and a stay of execution and an extension of time, and a reminder that they were to supply their documents to the Civil Appeals Office by 9 th June. There is not, so far as I have seen…..a stay of execution which has been granted, and the last order which has been made in the judicial review proceedings, following on from the order of Judge Pelling QC, is an order by His Honour Judge Curran on 18 th March, which also refused permission to appeal in this case and refused permission to appeal.
11. Therefore, the order that I made on the 29 th April, which indicated on that occasion the trial would be adjourned until today, is still valid. ….in answer to this correspondence sent by the Williamses to the court, I caused a letter to be sent to them on 9 th June indicating that the document which they were referring to was an Appeal Notice and not a court order for stay, and I warned them expressly that the provisions of the order made on 29 th April remained in force. So the position we arrive at today is that there is no valid appeal against the orders of this court which has been granted, they do not have a valid permission to make a claim for judicial review, no stay of proceedings has been granted by a superior court, and this court is entitled, as I see it, to proceed to deal with the merits of this counterclaim today and the Williamses, without giving any explanation [to] this court, have simply chosen not to attend today and take part in these proceedings."
The Judge then referred to the evidence of the Respondents which he had read and which had been verified on oath at the hearing. He made express reference to witness statements from the Appellants and three supporting witnesses, saying (at [12]) that he had "read those statements also". The Judge further had particular regard to the "single joint expert's report" which dealt with the state of the property and contained an opinion from the Chartered Surveyor, a Mr. Evans, as to whether the defects were structural and as to the cause of those defects ( ibid). Still further, the Judge had regard to medical evidence relating to the First Respondent's alleged personal injury.
In the event, the Judge concluded (at [13]) that the Respondents satisfied the burden of proof resting upon them and had established that the Appellants had been in breach of the implied covenant to keep the structure and exterior of the property in repair. In reaching this conclusion, the Judge relied centrally on the report of the single joint expert, Mr. Evans (at [14]). For the purposes of the appeal, the details do not matter. The Judge went on (at [15] – [18]) to dismiss the counterclaim insofar as it claimed additional fuel costs but otherwise allowed it, both in respect of particular items of damage and a claim for general damages. In doing so, the Judge was severely critical of the condition of the property and of the Appellants for disregarding complaints made by the Respondents at the times in question and failing to take remedial action. Finally, the Judge allowed the claim by the First Respondent for personal injury (at [19]).
THE RIVAL CASES ON THE APPEAL
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