Landlords obtaining possession order and evicting claimant – Landlords letting out property to new tenant – Claimant obtaining order setting aside possession order – Claim for damages for breach of covenant for quiet enjoyment – Whether setting-aside order resuscitating secure tenancy apparently concluded by possession order and eviction – Judge awarding damages – Appeal allowed
The claimant was a secure tenant of premises at 93 Taylor’s Lane, London NW10. In December 1996 he was arrested and remanded in custody. In April 1997 the council issued a notice seeking an order for possession on the ground of arrears of rent and, in July 1997, in the claimant’s absence, they were granted an unsuspended possession order, to take effect in August 1997, together with a money order representing the arrears of rent.
On his release from prison, the claimant sought to persuade the council to take no further action on the possession order. By a letter of September 1997, the council informed the claimant’s solicitors that they had applied for a warrant and were awaiting a date from the county court bailiff. The claimant’s solicitors sought legal aid to apply for an order to suspend any warrant. In October 1997, before the application was decided, the eviction was carried out. Despite being informed by the claimant’s solicitors that an application would be made to set aside the original order, the council proceeded to relet the premises to a new tenant, A, who moved in in November.
On 21 November the claimant obtained an order setting aside the possession order. He issued proceedings for damages against the council claiming that, as a result of the setting-aside order, he had been entitled to exclusive possession of the premises and that the council had, therefore, been in breach of their covenant for quiet enjoyment. The judge held that the council were liable to compensate the claimant for breach of the covenant from 21 November 1997. The council appealed, and the claimant cross-appealed against the conclusion that the breach of covenant had not been established prior to 21 November 1997.
Held: The appeal was allowed; the cross-appeal was dismissed.
1. The council had been acting under an order of the court when they evicted the claimant and relet the premises. The interruption to the claimant’s quiet enjoyment was therefore lawful at the time that it took place and could not retrospectively be made unlawful. A person should be entitled to act in pursuance of a court order without facing the risk of his action being rendered unlawful retrospectively. That was more pertinent where the interests of a third party, such as A, became involved: see Hillgate House Ltd v Expert Clothing Service & Sales Ltd [1987] 1 EGLR 65 and Isaacs v Robertson [1985] AC 97.
2. There was nothing in the case of Governors of the Peabody Donation Fund v Hay [1986] 19 HLR 145 to suggest that the possibility had been envisaged that liability could be established for actions carried out under the authority of the original judgment, or that the effect of an order to set aside could nullify a properly created secure tenancy or create two simultaneous secure tenancies. A’s tenancy had clearly been lawful from its outset. A enjoyed the rights of a tenant at the premises, including the benefit of the covenant for quiet enjoyment, and the claimant could not enjoy them at the same time. Accordingly, the claimant was not entitled to damages for breach of quiet enjoyment.
Andrew Short (instructed by JR Jones) appeared for the claimant; Bryan McGuire (instructed by Alexander & Partners) appeared for the defendants.
Thomas Elliott, barrister
