Unlawful eviction — Plaintiffs claiming damages — Whether subagent liable — Whether within scope of employment — Subagent liable as joint tortfeasor with landlord
The tenants occupied two single-person flats in a South London property. C held the freehold reversion. He had lived abroad since 1985 and had not been heard from since. Prior to that, C gave W the management of the property. W said that C owed him money. They agreed that W should collect rents until the debt had been paid off. W was elderly and in poor health. In 1990 he gave M the management of the flats which had fallen into disrepair. After M took over he instructed his solicitors to serve notice to quit on both tenants purporting to be acting on the instructions of W. W claimed that it was without his authority. Alleged harassment and threatening behavior followed by M and his colleagues until eventually both tenants left their flats. They subsequently sued C,W and M for damages under sections 27 and 28 of the Housing Act 1988.
Held Claim against W dismissed; claim against C and M succeeded.
1. C was the landlord for the purposes of section 27 although W did the letting with C’s implied authority so acting as C’s agent.
2. An agent was entitled to appoint a subagent where he could not communicate with the principal, the action was necessary for the principal’s benefit and the agent was acting bona fide in his interest. On the evidence all the necessary elements were present and W did appoint M as an effective subagent of C.
3. It seemed that M had authority to start the eviction by issuing a notice to quit, but had no authority to bring about an unlawful eviction.
4. Section 27 of the 1988 Act created a new statutory tort of unlawful eviction where the landlord (“the landlord in default”) or “any person acting on his behalf” knowing that his conduct was likely to cause a residential occupier to leave his premises, acted so as to interfere with the peace and comfort of the occupier which led the occupier to give up occupation. The word “agent” had been avoided. It seemed that “any person acting on his behalf” did not bear the restrictive meaning of someone carrying out the landlord’s intentions but was intended to be as broad as possible covering, eg independent contractors. It was wide enough to include M. His actions were within the scope of his employment as subagent even though they were not specifically authorised by C. On the other hand, W had not done any acts to bring him within section 27.
5. It was clear that M had performed deliberate acts bringing him within section 27. However, under section 28 the landlord was the only person directly liable in damages although the general rule was that where a principal was liable for the torts of his agent, they were regarded as joint tortfeasors.
6. In Jones v Miah [1992] 2 EGLR 50 the majority of the Court of Appeal formed the preliminary view that defendants were liable under section 27 as joint tortfeasors who shared a common design with a landlord in default. The court in the present case had had the advantage of fuller argument on the question than the appeal court in Jones. In the absence of anything which precluded it, the court concluded that the landlord’s agent — acting within the scope of his employment — might be liable as joint tortfeasor. Accordingly, C and M were both liable in damages under sections 27 and 28. An inquiry would be held as to quantum.
Adrian Jack (instructed by Ziadies) appeared for the plaintiffs; Milan Dulovic (instructed by Leigh Williams) appeared for W, the first defendant; Penelope Reed (instructed by Mohabir & Co) appeared for M, the second defendant; the landlord did not appear and was not represented.
