Landlord and tenant — Quiet enjoyment — Damages for breach of covenant — Lease of chalet and other premises in grounds which included a caravan park, club and holiday homes — Violent and abusive behaviour by landlord driving appellant and wife to leave
respondent, plaintiff in the county court, on retirement from the Royal Navy
purchased for £10,000 a lease with 19 years to run of a chalet, a restaurant
and a help-yourself food supply on land owned by the appellant — At first
things were peaceful but after a time incidents took place in which the
appellant landlord evinced a tendency to insulting and violent behaviour,
culminating in a physical attack on the respondent in his chalet — His wife was
so terrified that she took refuge under a caravan — They left soon afterwards
with a police escort, being in effect evicted from the site — The respondent
brought an action for damages in the county court and was awarded damages
against his landlord, £10,000, being the purchase price of the lease, a sum for
expenses such as the conveyance and an amount for mental distress, to include
the distress caused to the respondent’s wife
landlord appealed — It was argued on his behalf that the judge was in error in
concluding that the eviction was permanent; it was made permanent by the
respondent’s own conduct — The Court of Appeal rejected this submission — They
agreed with the judge that the eviction need not be by a direct physical act;
it was sufficient if the respondent and his wife were driven to leave because
they were put in fear and intimidated, so that they could not in safety remain
— The appellant had been guilty of a serious breach of the covenant of quiet
enjoyment and the damages awarded were correct — Appeal dismissed
No cases are
referred to in this report.
This was an
appeal by the defendant, Peter James Floyd, from the decision of Judge
Bracewell QC, at Barnstaple County Court, awarding damages to the plaintiff,
the present respondent, Michael Sampson, for breach of the covenant of quiet
enjoyment in his lease of a chalet and other premises at Kentisbeare Grange,
near Barnstaple.
Michael
Kolanko (instructed by Fergusons, of Bideford) appeared on behalf of the
appellant; Nigel Meares (instructed by Rickerby Jessop, of Cheltenham)
represented the respondent.
Giving the
first judgment at the invitation of Butler-Sloss LJ, SIR GEORGE WALLER said:
This is an appeal from a decision of Judge Bracewell QC sitting at Barnstaple
County Court when she gave judgment for the plaintiff for £11,364. The facts
are that the defendant owned a place called Kentisbeare Grange in the grounds
of which there were a caravan park, a club, and a number of chalets which were
used for holiday homes. The plaintiff, on retirement from the Navy, bought a
20-year lease with some 19 years to run for some £10,000. The lease was of a
chalet, a restaurant and a help-yourself food supply. That contract was on
April 7 1983.
According to
the plaintiff, at the beginning things were reasonably quiet and the demand,
being for holiday homes, was small to start with. But when they came to the
month of July there were three incidents which made a very different picture.
The plaintiff had not been well just before July 3 and on that day the
defendant came into the help-yourself bar, where he had something substantial.
When he had finished, the defendant threatened the plaintiff with putting the
dish round his head if he (the plaintiff) charged for it in the way that he had
done. The plaintiff protested, and the defendant then said ‘I will break you
physically and financially’, and the plaintiff then kept quiet. At the end of
the discussion the defendant told the plaintiff to ‘get off his f…..g site’.
On July 7
there was another difference between the plaintiff and the defendant. It was
over somebody that the plaintiff was employing, and I do not deal any more with
that.
On July 16
came the most serious incident of all. There had been a fight between the site
manager and the defendant’s son. The plaintiff was in his restaurant when he
heard the sound of a woman fighting outside. The defendant then came in, said
it was the plaintiff’s fault for employing one particular lady and said: ‘I’ll
kill you. Get off my f…..g caravan site’. He then thumped the plaintiff in
the eye. The plaintiff told him not to be so silly, and hit him back. Luckily
the defendant’s son then came in, wrestled with the defendant, and stopped the
trouble. The plaintiff then went to his chalet, which was some little distance
away. He was in the chalet with the two girls who assisted him, his wife and
the manager of the estate when the door of the chalet suddenly burst open. The
defendant, using his shoulder, had barged in and said that the two girls should
not be there. The plaintiff felt threatened. The defendant got more and more
angry. He caused more and more trouble. He wrestled with the plaintiff, who
tried to put him out. When he got the defendant out, the plaintiff could not
find his wife. She apparently was so terrified of what was happening that she
had gone out and hidden underneath one of the caravans. The situation was such
that the plaintiff and his wife did not stay there any longer. They went away
and, within the next day or so, collected all their belongings. The plaintiff
took the precaution of having a police escort when he and his wife were
collecting their belongings and they were all taken away.
The learned
judge’s conclusion was this:
[The plaintiff and his wife] were so
frightened that they left; they went into temporary accommodation and
complained to the police and because of their fear negotiated an arrangement
for a police escort when collecting their belongings. I have no hesitation in
finding that there was a breach by the defendant of the covenant for quiet
enjoyment which was so serious and so wilful that the plaintiff and his wife
could not with safety remain on the site and the defendant’s conduct was
calculated to, and did in fact, evict the
scared to return without police protection after having been driven from the
site.
That this was permanent was really made
clear by a letter on July 25 from the plaintiff’s solicitors and by the fact
that the plaintiff cancelled his insurance and the insurance company notified
the defendant on September 7.
The judge’s
final conclusion about that was this:
I accept the contention of the plaintiff
that he is entitled to damages for breach of the covenant for quiet enjoyment .
. .
I do not base my judgment on acceptance
of a repudiatory breach, nor on the doctrine of frustration nor on rescission
because there is considerable doubt on the authorities as to the extent to
which such doctrines can apply to leases if they apply at all.
The learned judge was finding that it was
eviction as a result of the conduct of the defendant. She found that that
eviction was permanent and she awarded damages accordingly.
Mr Kolanko, on
behalf of the defendant appellant, has submitted that there are arguments for
saying that that eviction was not permanent; it was made permanent by the
plaintiff’s conduct and it was wrong of the learned judge to come to the
conclusion that it was permanent. Mr Kolanko has said everything that can
possibly be said on behalf of his client, but I am afraid I cannot accept it.
It is,
however, clear that eviction need not be physical. If the landlord’s conduct
was such as to frighten the plaintiff, both on his own behalf and on his wife’s
behalf, then there was an eviction. In this particular case the learned judge
came to the conclusion that it was a very serious one, so serious as to be
permanent, and it was a serious breach of the covenant of quiet enjoyment. In
my judgment, therefore, the learned judge was quite right in coming to the
conclusion that there was this eviction, even though it was done by
circumstances and not actually physically. Accordingly she was right in finding
that the plaintiff was entitled to damages. She awarded £10,000 and the
conveyancing costs. Mr Kolanko, very fairly, has said that if the court is
against him in saying that the eviction was not a permanent eviction he cannot
really advance any convincing argument to say that the learned judge was wrong.
The judge
found that the plaintiff was out of pocket to the extent of the £10,000 he had
paid for the lease, and the conveyancing fees in addition. So the first two
heads of damage by the learned judge are perfectly correct in my judgment.
There remains
the question of anxiety. The authorities where, in breach of contract, damages
for anxiety and distress can be awarded are strictly limited to those cases
where possible distress is a relevant factor when the contract is made and
broken, eg holiday cases. This case is rather different because of the manner
of the breach. It was the defendant’s conduct which forced the breach. The
conduct was such as to affect the physical enjoyment of the premises and stress
was inevitable, both in the plaintiff himself and indeed his wife, because they
were sharing one of the chalets together. In my judgment the learned judge was
quite right to award damage for distress. The only question which remains is
whether the wife’s stress should be included in the plaintiff’s claim.
Mr Meares on
behalf of the plaintiff has submitted that the covenant for quiet enjoyment
must cover others besides the actual tenant. It must cover the tenant’s wife,
it must cover the tenant’s guests and, as the tenant’s wife must be one of the
persons who are covered by that covenant, Mr Meares submits that the judge was
quite right to include her in the total sum. I agree with that submission. In
my judgment, the learned judge was quite justified in awarding damages of £750
for the distress caused by the defendant’s behaviour which ended this tenancy,
and accordingly I would dismiss this appeal.
Agreeing,
BUTLER-SLOSS LJ said: I would only add a few comments.
The facts have
disclosed disgraceful behaviour by the defendant, which culminated in the
departure of the plaintiff and his wife because, according to the judge, they
were frightened and intimidated. The judge, having found the facts, held that:
. . . there was a breach by the defendant
of the covenant for quiet enjoyment which was so serious and so wilful that the
plaintiff and his wife could not with safety remain on the site and the
defendant’s conduct was calculated to, and did in fact, evict the plaintiff and
his wife from the holiday site. They were, I find, justifiably scared to return
without police protection after having been driven from the site.
Counsel for
the defendant accepted that, on these findings, the plaintiff and his wife were
in fact evicted but contended that this was of a temporary nature and should
not have been treated as a continuing breach of the covenant for quiet enjoyment,
in that it was not permanent, and that the actions were not of so serious a
nature as to justify the judge’s finding. The judge, on the evidence before
her, was satisfied as to the seriousness and as to the long-term effects of the
conduct of the defendant. I can see no reason whatever to disagree with her
conclusions.
The measure of
damages in this case was, rightly in my view, the whole of the purchase price
of the lease entered into only a few months before these actions took place,
together with the expenses such as the conveyance.
The other head
of damages is that of mental distress. In this case the conduct of the
defendant caused the breach and affected both the plaintiff and his wife in
their entitlement to the covenant for quiet enjoyment, and this seems to me to
include mental stress in this type of case. I agree, for the reasons given by
Sir George Waller, that the wife is properly to be included in the award of
£750 damages to the plaintiff.
I, too, would
dismiss this appeal.
The appeal was dismissed with costs, not
to be enforced without leave of the court; legal aid taxation ordered.
