Housing Act 1988 — Damages for unlawful eviction — Whether common law damages fell to be set off against statutory damages — Whether exemplary or aggravated damages — Whether damages excessive
On November 6
1988 the plaintiff was granted a six-month tenancy of a bed-sitting-room in a
house in which the defendant landlord and other tenants also resided. Cooking
and washing facilities were shared. In April 1989 the defendant gave the
plaintiff 14 days’ notice to quit (instead of the 28 days to which he was
entitled) and then enforced possession without a court order. In the court
below the judge awarded the plaintiff £6,000 damages, of which £500 was general
damages, £1,000 exemplary damages and £4,500 damages under sections 27 and 28
of the Housing Act 1988. The defendant appealed, contending that: (1) the
general and exemplary damages fell to be set off against the 1988 Act damages;
and (2) the 1988 Act damages were excessive.
written evidence put in by the defendant’s valuer failed to allow for the
possible six months it would take to get possession when making a valuation on
the assumption in section 28(1)(a) of the 1988 Act that the plaintiff continued
to have the same rights of occupation, the assessment of damages could not be
interfered with. Because the award of general damages covered the same loss as
that awarded under the 1988 Act, the £500 fell to be set off against the award
of £4,500. The defendant did not evict the plaintiff for financial motives; the
award of £1,000 could not have been an award of exemplary damages and must be
treated as aggravated damages. Because it as an award for the same loss as that
awarded under the 1988 Act it too fell to be set off against the £4,500.
The following
cases are referred to in this report.
Drane v Evangelou [1978] 1 WLR 455; [1978] 2 All ER 437; (1977) 36
P&CR 270; 246 EG 137, [1978] 1 EGLR 30
Jones v Miah (1992) 24 HLR 578; [1992] 2 EGLR 50; [1992] 33 EG 59
Mafo v Adams [1970] 1 QB 548; [1970] 2 WLR 72; [1969] 3 All ER
1404, CA
Ramdath v Daley & Daley (1993) 25 HLR 273
Rookes v Barnard [1964] AC 1129; [1964] 2 WLR 269; [1964] 1 All ER
367; [1964] 1 Lloyd’s Rep 28, HL
Tagro v Cafane [1991] 1 WLR 379; [1991] 2 All ER 235; [1991] 1
EGLR 279, CA
This was an
appeal against an order of Judge Goldstein in Bow County Court, who on October
23 1992 awarded damages to the plaintiff, Mr Nwokorie, against the defendant,
Mr Mason, in respect of the unlawful eviction of the plaintiff.
William
Geldart (instructed by Aleem Khan & Co) appeared for the appellant; David
Watkinson and Stephanie Harrison (instructed by Edwards Son & Noice)
represented the respondent.
Giving the
first judgment, DILLON LJ said: This is an appeal by the defendant, Mr
Nwokorie, against a judgment against him awarded by Judge Goldstein after the
trial of this action on October 23 1992. The judgment was in sums amounting to
£6,000 with costs.
The matter
arose out of the eviction by the defendant of the plaintiff (Mr Mason) from
residential accommodation in a property belonging to the defendant, 8 Upper
Road, Plaistow, as long ago as April 22 1989. The plaintiff had a
bed-sitting-room in the property. The defendant was a resident landlord with a
sitting-room on the ground floor and a bedroom on the upper floor. Cooking,
washing and lavatory facilities were shared. Therefore, it is common ground
that the plaintiff did not have a protected tenancy or security of tenure under
the Rent Acts, but he was entitled to 28 days’ notice of termination of his
tenancy. In addition, he had the right not to be evicted without an order of
the court.
The defendant,
however, gave him a mere 14 days’ notice to quit and proceeded to enforce that
without any order of the court.
In the notice
of appeal it is put as the first ground of appeal that the judge’s decision
that there was an eviction was against the weight of the evidence, and the
judge should have held that what happened amounted to a surrender of his
tenancy by the plaintiff. Furthermore, it is put that the judge misdirected
himself in holding that the Housing Act 1988 applied to the plaintiff’s
tenancy, because it was a tenancy not protected by the Rent Act. It is
therefore said that there was no right to damages under that section.
Both these
points, however, have been abandoned by the defendant in this court as
unarguable in the light of the evidence and the judge’s findings. The appeal is
therefore limited to the quantum of damages.
The sum of
£6,000, which the judge awarded the plaintiff, is broken up, under his
judgment, as: £500 general damages, £1,000 exemplary damages and £4,500 Housing
Act damages; total: £6,000.
‘Housing Act
damages’ mean damages under sections 27 and 28 of the Housing Act 1988.
Section 27(1),
as it was in force at the relevant time, provides that:
. . . if at
any time after 9th 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.
It is then
provided by subsection (3) of section 27:
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.
That is
subject to the provisions of subsection (4) and (5) of section 27. Subsection
(4) provides that:
Any liability
arising by virtue of subsection (3) above —
(a) shall be in the nature of a liability in
tort; and
(b) subject to subsection (5) below, shall be in
addition to any liability arising apart from this section (whether in tort,
contract or otherwise)
Subsection (5)
provides that:
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.
There can
therefore be no duplication of damages.
It is
submitted for the appellant landlord that the result of subsection (5) is that
the £500 which the judge awarded as general damages, and also the £1,000 which
the judge awarded under the head of ‘exemplary’ damages, but which the
plaintiff seeks to justify under the alternative head of aggravated damages,
both fall to be set off against the damages awarded under section 27. In other
words, the plaintiff has an option. He can claim the damages under section 27,
or he can claim the general damages and the exemplary or aggravated damages,
but he cannot have both.
The landlord
also asserts that the judge’s award of £4,500 under section 27 is excessive and
cannot be maintained.
Subsection (3)
provided that the damages under section 27 were to be assessed on the basis set
out in section 28. Section 28 provides by subsections (1) and (2):
(1) The basis for the assessment of damages
referred to in section 27(3) above is the difference in value, determined as at
the time immediately before the residential occupier ceased to occupy the
premises in question as his residence
— That of
course is the date of eviction in April 1989 —
. . . between
(a) the value of the interest of the landlord in
default determined on the assumption that the residential occupier continues to
have the same right to occupy the premises as before that time; and
(b) the value of that interest determined on the
assumption that the residential occupier has ceased to have that right.
(2) In relation to any premises, any reference in
this section to the interest of the landlord in default is a reference to his
interest in the building in which the premises in question are comprised
(whether or not that building contains any other premises) together with its
curtilage.
Thus it is
necessary to look not just at the room which the plaintiff occupied but also at
the whole of the building, 8 Upper Road, Plaistow.
I will deal,
first, with the landlord’s attack on the award under sections 27 and 28 of the
Housing Act. What had to be valued was the difference between the value of the
landlord’s interest in the building, on the assumption that the plaintiff had
ceased to have the right of occupation — the landlord’s interest was a freehold
interest in the building — and the value of that interest determined on the
assumption that the plaintiff continued to have the same right to occupy the
premises as before. That was a right which could have been the subject of a 28
days’ notice to quit at any time. If the plaintiff did not quit on the
expiration of that notice the landlord could at once have applied to the court
for a possession order. The plaintiff would have had no defence to the claim
for a possession order and the maximum time which the court could have allowed
for possession to be given under a possession order was three months.
There is,
therefore, 28 days for notice to quit, a period for proceedings to be
instituted and to come on for hearing and a period of up to three months before
possession would have to be given under a possession order obtained at the
hearing. Both sides have agreed that that means that possession could have been
obtained against the plaintiff in up to six months.
No valuation
evidence was called at the trial, but each side instructed a valuer to put in a
written valuation. The plaintiff had the valuation of a Mr Bernard Living
[FRICS], of Charles Living & Son.
His valuation
was as follows:
Having regard
to the foregoing,
— his
description of the property —
we are of the
opinion that the following values are fairly stated as at April 1989.
(a) £45,000 on a full vacant possession basis;
(b) £40,500 with possession being obtainable in
one to six months.
(c) £22,500 subject to a protected tenancy of one
room let at £40 per week
inclusive of
rates and with vacant possession of the remainder.
£40 a week was
the rent payable by the plaintiff.
The defendant
landlord’s surveyor was Cornerstone. A Mr Phillip Bellamy [ARICS], a chartered
surveyor, was acting on behalf of them. It seems that he would have had Mr
Living’s valuation before him. He agreed that, as at April 1989:
(a) freehold vacant possession value £45,000 and
. . .
(c) valuation of house, subject to statutory
tenancy,
— where the
entire property was subject to a statutory tenancy and the landlord is unable
to gain possession —
. . . we
would consider the house to have an open market value, subject to that tenancy
of £22,500.
In relation to
(b), however, he said:
(b) Value subject to occupation of one room. It
is understood that the tenant took up occupation of one room under the terms of
the old Rent Act on the basis of a resident landlord and would therefore be
unable to oppose the landlord obtaining possession and selling the property in
the usual way. On this basis and bearing in mind that during the normal course
of events the sale and conveyancing of the property is likely to take at least
two to three months, it is considered that the average landlord would serve
notice upon the tenant requiring his room to be vacated which would then enable
the landlord to sell the property with full vacant possession. Therefore it is
considered highly unlikely that there would be any effect upon the freehold
value of the property and we would still consider this to be £45,000. This is
on the assumption that the tenant has no legal right to oppose the landlord’s
possession.
It is common
ground that there is no question on the facts of this case of a valuation under
(c), subject to a statutory tenancy.
One of the complicating
factors in the case is that the plaintiff was not the only occupier of the
property as well as the defendant landlord.
In his
evidence, the defendant said:
I gave him a
six months tenancy from 9th November 1988, £40 per week, five of them in the house,
one my brother.
‘Five of them’
seems to indicate that the defendant himself was not to be counted among the
five. The five would thus have included the plaintiff, the defendant’s brother
and three other people. How they all fitted in is unclear. There were two
living rooms on the ground floor, one occupied by the plaintiff and one by the
defendant. There were three bedrooms on the upper floor, one occupied by the
defendant.
Mr Bellamy’s
valuation for the defendant states:
No access was
possible to the small front bedroom or rear bedroom as these were locked during
the time of our inspection.
There is no
evidence to show on what terms the defendant’s brother, and the other three
people, were in occupation of their rooms. It seems clear, however, that none
of them could have had security of tenure under the Rent Act because of the
shared kitchen and washing facilities, and because also of the fact that the
defendant was a resident landlord.
Consequently,
it would seem that none of them could have had greater security than the
plaintiff. There would be the same right, at most, to have not less than 28
days’ notice and not to be evicted without a court order.
Therefore, as
it seems to me, the other occupants can be ignored, because they could be got
out as easily as the plaintiff could be got out if the same lawful steps were
taken.
The fact
remains, however, that while Mr Living, in his valuation, assumes possession
being obtainable in one to six months, which necessarily means, for valuation
purposes, up to six months, Mr Bellamy has assumed that the landlord, if he is
proposing to sell the
proceed to sell, serving notice upon the tenant at the time he sells. He does
not envisage a period of more than three months being required to obtain vacant
possession.
It seems
startling to me that the market value of the property would be depreciated by as
much as £4,500 if it would take six months to get vacant possession, but would
not be depreciated at all if vacant possession could be obtained in two to
three months, the normal period for a conveyancing transaction. The two to
three months must include the time before exchange of contracts. I do not
regard three months after exchange of contracts as the normal course of events.
It seems,
therefore, that Mr Bellamy has overlooked the three elements that go to make up
the time factor for obtaining vacant possession against the plaintiff.
1. The 28
days’ notice.
2. The period
thereafter until a possession order can be obtained.
3. The period
allowed under the possession order.
If the period
is six months, it could have the effect of discouraging would-be purchasers,
who are eager to move in, possibly for reasons of change of job, and do not
want to have to face a prolonged completion. I would regard a six-month
completion from the time that the purchaser comes on the scene, which might be
immediately after the property is put on the market, as an unusually deferred
completion, which might well defer some purchasers. Whether that would have the
effect of reducing the freehold value by £4,500 is another matter.
The judge,
however, dealt with this by saying:
Without in
any way seeking to distinguish the two reports, it is right to say that the
report of Charles Living & Son, which is that produced by the plaintiff,
addresses the very problem of damages that the Act sets out in section 28, and
the report from Cornerstone does not. It therefore follows that I should
accept, and do accept, the plaintiff’s report in preference to that of the
defendant.
We were
referred by Mr David Watkinson, for the plaintiff, to the decision of this
court in Tagro v Cafane [1991] 1 WLR 379*. In that case a
question had arisen on a claim for damages for unlawful eviction under sections
27(3) and 28 of the Housing Act 1988. The plaintiff called valuation evidence
putting the amount of the plaintiff’s loss at £31,000. The defendant called no
valuation evidence.
*Editor’s
note: Also reported at [1991] 1 EGLR 279.
Apart from
deciding certain other points this court held that, having regard to the
defendant’s failure to adduce expert valuation evidence, the judge had been
entitled to accept that proffered by the plaintiff and, accordingly, although
the amount awarded was high, the court would not interfere either by remitting
the matter or by varying the judge’s order.
The leading
judgment was given by Lord Donaldson of Lymington MR. Russell and Nolan LJJ
agreed. Lord Donaldson said at p386C:
Mr Cafane
called no evidence to dispute this figure. Mr Carnwath is therefore reduced to
saying that the judge can be faulted on the footing that no reasonable judge
could have accepted that evidence. That submission he made simply and with
force and with slightly more difficulty when Russell LJ said, ‘Well, what
should he have done?’. It is true, I suppose, that he could have adjourned the
hearing and urged Mr Cafane to call expert evidence. But it is difficult to see
how he could have said, ‘I am not satisfied that any damages are due on this
evidence’ and, if he is not to say that, then he would have in some way to
reduce the surveyor’s figure on the basis, I suppose, of what he (the judge)
thought were proper values. Had he done so, this court would probably have
quashed his decision on the grounds that he was acting not upon evidence and
not upon something of which a judge should take judicial knowledge but upon
some extraneous view as to a matter of fact.
Then it was
urged that the damages seemed to be high. Lord Donaldson said, at p387E:
I accept that
the damages do seem to be high, but I have to warn myself against using any
knowledge that I may have gained in other ways to support that view, and I am
quite unable to say that the judge was at fault. If we were to interfere on
this ground, it could only be on the basis of sending it back for a rehearing
designed to enable Mr Cafane to call valuation evidence. It is not clear to me
why he should have a second opportunity to call valuation evidence when he had
the opportunity originally and did not choose to avail himself of it.
The only
difference is that in the present case the defendant’s valuer failed to
appreciate the legal position and so, in relation to (b), asked the wrong
question, although it would seem he had the plaintiff’s valuation before him.
He gave no reasons for adopting a different basis in his calculation. I do not
believe that makes any difference.
Accordingly, I
reach the conclusion that it is not open to this court to interfere with the
judge’s award of £4,500 under the 1988 Act.
Then there is
the award of £500 general damages. That is not disputed by the defendant, but
it is said that it falls to be set-off against the £4,500 awarded under
sections 27 and 28.
Mr Watkinson
says that there should be no set-off. As I understand his submissions, they are
that the award of general damages was indeed an award of general damages, and
an award of general damages is not necessarily limited to damages in respect of
the loss of the right to occupy the premises as the plaintiff’s residence.
That may be
so, but it is difficult to see what, in the context of this case, could
conceivably have been covered by the award of £500 except that right. The
wording used is ‘loss of the right to occupy the premises as his residence’,
not ‘loss of his tenancy or estate or interest in the premises’. It is
essentially damages for wrongful eviction which deprived him of his right to
occupy the premises as his residence.
I take the
view, therefore, that this is clearly a case where the general damages fall to
be set off against the award under the 1988 Act.
I come then to
the £1,000 which was awarded as exemplary damages. The judge, on the first page
of his judgment, referred to the claim as a claim for damages for unlawful
eviction including: (a) a claim for exemplary damages or aggravated or punitive
damages; and, (b) damages under sections 27 and 28 of the Housing Act 1988. He
does not appear, in the course of his judgment, to devote much attention, if
any, to the distinction between exemplary and aggravated damages.
On p9 of his
judgment, starting at E, he sets out that from the breach of legal obligations
the plaintiff seeks to recover damages under four quite separate and distinct
headings. Then he sets out, first of all, any special damages. Second, general
damages for the inconvenience and hardship resulting from the eviction. Third,
exemplary damages to point out to any person minded to do this the financial
consequences that might follow from it. Last, damages under the 1988 Housing
Act.
He seems there
to use the term ‘exemplary damages’ as possibly covering aggravated or punitive
damages. He ends up by saying:
Without being
the worst case of its kind, it is a case of unlawful eviction, deliberate
eviction, and there will be an award of £1,000 exemplary damages.
During the
course of the argument it has been pointed out to us that in his speech in Rookes
v Barnard [1964] AC 1129 Lord Devlin sets out the distinction between
aggravated and exemplary damages.
Thus, at p1221
he said:
It must be
remembered that in many cases of tort damages are at large, that is to say, the
award is not limited to the pecuniary loss that can be specifically proved. In
the present case, for example, and leaving aside any question of exemplary or
aggravated damages, the appellant’s damages would not necessarily be confined
to those which he would obtain in an action for wrongful dismissal.
He continued a
bit further down that page:
Moreover, it
is very well-established in cases where the damages are at large the jury (or
the judge if the award is left to him) can take into account the motives and
conduct of the defendant where they aggravate the injury done to the plaintiff.
There may be malevolence or spite or the manner of committing the wrong may be
such as to injure the plaintiff’s proper feelings of dignity and pride. These
are matters which the jury can take into account in assessing the appropriate
compensation.
Then he
continues, at the foot of p1221:
But there are
also cases in the books where the awards given cannot be explained as
compensatory, and I propose therefore to begin by examining the authorities in
order to see how far and in what sort of cases the exemplary principle has been
recognised.
He then goes
through various cases and he reaches the conclusion that there are only a
limited number of categories where exemplary damages can be awarded. The first
category is oppressive, arbitrary or unconstitutional action by the servants of
the Government.
That is not
this case. There is then a second category, namely those cases in which the
defendant’s conduct has been calculated by him to make a profit for himself
which may well exceed the compensation payable to the plaintiff.
In addition,
there must be added any category in which exemplary damages are expressly
authorised by statute, but that does not cover the present case. From then
onwards the courts have recognised that, in considering exemplary damages, the
position is different from a claim for general damages or, indeed, aggravated
damages. That is echoed in the recent judgment of Nourse LJ in Ramdath v
Daley & Daley, decided on January 18 1993, and reported in (1993) 25
HLR 273. At p279 he said:
Aggravated
damages and exemplary damages are not only different in themselves, they are
awarded for two different purposes,
which he
proceeded to set out.
On the
authorities there has been, as it seems to me, a measure of confusion,
particularly in certain county court cases to which we were referred, where
aggravated damages and exemplary damages seem to have been regarded as
substantially the same thing.
There is also
the complication that, in the case of Drane v Evangelou [1978] 1
WLR 455*, the majority of the court, Lawton and Goff LJJ, regarded the damages
in question as aggravated damages, whereas Lord Denning regarded them as
exemplary damages. That, it would seem on Lord Devlin’s test, would have been
appropriate if the object of the exercise in evicting or endeavouring to get
out a protected tenant was to achieve, as it very often was, a financial
advantage for the landlord.
*Editor’s
note: Also reported at (1977) 246 EG 137, [1978] 1 EGLR 30.
Where,
however, there was no evidence whatsoever of a financial motive, it was held in
Mafo v Adams [1970] 1 QB 548 that there was no case for exemplary
damages: see the judgments of Sachs LJ at pp555 and 556 and Widgery LJ at p559.
Sachs LJ pointed out that the onus to establish a financial motive was squarely
on the plaintiff.
I do not
propose to go through a number of the other authorities and decisions of this
court which were drawn to our attention.
In the present
case it is accepted that there was no financial motive in the defendant’s
course to get rid of the plaintiff from the property. The difficulty was that
the two did not get on and the defendant wanted the plaintiff out of the
property. It seems to me that the award cannot be an award of exemplary
damages, but the plaintiff, by a respondent’s notice, seeks to support it as a
justifiable award of aggravated damages.
In Ramdath
v Daley & Daley there were special considerations which precluded
what had purported to be an award of exemplary damages from being regarded as
an award of aggravated damages. In that case the judge had awarded general
damages in a different figure which he had said included aggravated damages.
In the present
case, there is no such difficulty and, as I have said, there are indications in
the judgment that the judge was not drawing any distinction between exemplary
and aggravated damages. This was indeed a case where the conduct of the
defendant in evicting the plaintiff, who was a man who had a particular need
through certain temperamental difficulties, was calculated to cause him
humiliation and shame and was calculated to be thoroughly offensive to his
feelings. He was refused to be let in when he came back to the property. He had
to go away. When he went to the police and brought them to the house the
defendant denied knowing of the plaintiff’s existence.
Therefore, I
would treat the £1,000 award as an award of aggravated rather than exemplary
damages.
But it is
still, in my judgment, an award of damages in respect of his loss of the right
to occupy premises as his residence, damages aggravated by the manner in which
he lost that right, but still aggravated damages for the same loss, the loss of
the right to occupy the premises as his residence.
Therefore, in
my judgment, the £1,000 ought also to be set-off against the £4,500 damages
under sections 27 and 28.
Our attention
was drawn to a decision of this court in Jones v Miah (1992) 24
HLR 578*, in which I gave the leading judgment, sitting with Nourse and Leggatt
LJJ. In that case there had been an award of £3,000 for aggravated damages,
£1,500 for loss and inconvenience, personal discomfort and distress and a
considerably higher sum for the tort of unlawful eviction under sections 27 and
28 of the Housing Act 1988. The parties there agreed that the £1,500 fell to be
set off against any damages awarded under the Housing Act, but they also agreed
that the £3,000 for aggravated damages did not fall to be set off. There was no
issue as to the set off of the £3,000 in this court. The court simply accepted
what the parties had agreed on that point. The case is not authoritative on
that point, although it is an authority on quite a lot of points which are
irrelevant to the present case.
*Editor’s
note: Also reported at [1992] 2 EGLR 50.
It follows
that, in my judgment, the award of damages should be reduced from £6,000 to
£4,500. To that extent I would allow this appeal and vary the order of the
judge.
Agreeing, HOLLIS
J said: The most important factor in this case is the meaning of section 27
of the Housing Act 1988. So far as material, subsection (1) reads:
(1) This section applies if at any time after 9th
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.
That, in fact,
is just what happened in this case. Subsection (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.
Subsection
(4):
Any liability
arising by virtue of subsection (3) above —
(a) shall be in the nature of a liability in
tort; and
(b) subject to subsection (5) below, shall be in
addition to any liability arising apart from this section (whether in tort,
contract or otherwise).
Subsection
(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.
I do not
consider that, at any stage during the course of the proceedings, the plaintiff
has to elect formally under which branch he seeks damages, whether under the
Housing Act or under the common law. But whatever he is awarded, it seems to me
that the smaller amount must be deducted from the larger in reaching the net
amount of damages that he should receive. In other words, a set-off. This, in
my view, not only applies to general damages but also to exemplary or
aggravated damages.
It will be
noted that the wording in subsection (5) of the Housing Act is ‘any liability’.
Therefore, the plaintiff can obtain damages either under sections 27 and 28 of
the Housing Act or at common law, but he cannot have both.
I entirely
agree that, on the facts of this case, the plaintiff would have obtained
aggravated damages and not exemplary damages for the reasons given by Dillon
LJ.
I also would
allow the appeal, in part, and reduce the damages awarded to the plaintiff to
the sum of £4,500.
Appeal allowed
in part.
