Landlord and tenant — Repairs — Landlords’ implied covenant to repair under section 11 of the Landlord and Tenant Act 1985 (replacing section 32 of the Housing Act 1961) — Condition that landlord must have notice of the want of repair before liability arises — Whether service on landlords of a copy of a valuation report obtained by the tenant specifying items of disrepair constituted sufficient notice — The report in question, a copy of which was sent to the landlords in 1983, had been obtained by the tenant to assist him in a possible bid for the reversion, which in the event came to nothing — In 1985 the local authority, under what was then section 9 of the Housing Act 1957, required the landlords to carry out certain works of repair, which were duly executed — Subsequently, in an action by the landlords claiming possession on the ground of arrears of rent, the tenant counter-claimed for damage caused by the execution of these works, special damage through having to leave the house for a time and for the cost of cleaning carpets and general damages for inconvenience and distress — The tenant’s claim, which was for breach of the landlords’ implied covenant to repair, was met by the defence that notice of the want of repair had not been given to the landlords — The assistant recorder, who tried the action in the county court, accepted the landlords’ submission that the report sent to the landlords in 1983, although it contained no less than 20 costed items (mainly repairs, although some might be described as improvements) did not constitute the required notice — It was submitted that a report for purposes of valuation in connection with an intended purchase, drawing attention to works which a future proprietor would want to carry out, differed from a notification of defects which qualified as breaches of covenant and which had the urgency of repairs
on appeal that the assistant recorder had reached the wrong conclusion —
Although framed for a different purpose, the report gave the landlords notice
of serious and significant wants of repair which constituted breaches of the
implied covenant — The court rejected criticisms based on the different dates
of the report and the subsequent section 9 proceedings — The trial judge had
assessed the damages at £450 in case he was wrong on the question of liability,
and the court found no fault in this assessment — Thus the tenant succeeded in
his counterclaim, but as there was no issue on the determination of rent arrears
by the trial judge, the order for possession would stand and the £450 would
have to be deducted from the amount of arrears payable — Appeal allowed
The following
cases are referred to in this report.
Dinefwr
Borough Council v Jones (1987) 19 HLR 445; [1987]
2 EGLR 58; 284 EG 58, CA
Griffin v Pillet [1926] 1 KB 17
O’Brien v Robinson [1973] AC 912; [1973] 2 WLR 393; [1973] 1 All ER
583; (1973 25 P&CR 239; [1973] EGD 296; (1973) 226 EG 297, HL
This was an
appeal by the tenant of a house at 9 Westmorland Street, Sheffield, from a
decision of Mr Assistant Recorder G W Lowe, at Sheffield County Court,
dismissing the appellant’s counterclaim for damages in an action by the
landlords for possession and arrears of rent. The landlords succeeded in their
claim for arrears of rent and the judge had made an order for possession.
Sylvester
Carrott (instructed by the Sheffield Law Centre) appeared on behalf of the
appellant; Timothy Briden (instructed by Tofields, of Sheffield) represented
the respondent landlords.
Giving the
first judgment at the invitation of Purchas LJ, SIR ROUALEYN CUMMING-BRUCE
said: This is an appeal against the judgment of the learned assistant recorder,
Mr Lowe, on a trial of the action on November 11 1987, when he adjudged that
the defendant’s counterclaim be dismissed and made a consequential order for
possession having regard to his finding of arrears of rent.
The background
of the matter can be summarised concisely: in June 1979 the appellant (the
tenant) was granted the tenancy of a house, 9 Westmorland Street, Sheffield, by
the respondents (the landlords). On December 22 1982, on the tenant’s
instructions, Mr Alan Rowley, a chartered surveyor, prepared a report for the
purposes of valuation of the premises because the tenant was minded to put in a
bid by way of purchase of the reversion from the landlords. Mr Rowley included
in his valuation report the structural condition of the property and the cost
of repairs relevant to negotiations to purchase, because the worse the
condition and the greater the incidence of necessary repairs, the less the
purchaser would expect to pay.
In January
1983 Mr Rowley’s report was sent to the landlords’ agents by means of a letter
which the tenant enclosed in a letter to those agents.
Negotiations
for the purchase of the hereditament came to nothing.
The next event
which happened was that on January 29 1985 the local authority served a section
9 notice on the landlords’ agents, giving them notice that the house, though
habitable, required significant structural repairs and giving the landlords six
months to carry out the repairs, which were estimated to be approximately
£2,500. The landlords in fact made application for a repairing grant, and in so
doing they gave their builders’ estimate of the probable extent of the
necessary repairs in the figure of £2,852. The landlords carried out the
repairs within six months.
So to the
proceedings: a summons was issued by the landlords in the county court on
October 23 1986 claiming possession of the dwelling-house on the ground of
arrears of rent, the quantification of such arrears at October 22 1986 (the
date of the particulars of claim) at £298.72 and claimed mesne profits from
October 20 1986 to December 3 1986, a total of six weeks at £19.16 per week,
which equalled £114.96, being a total altogether of £413.68.
By defence and
counterclaim the tenant put in issue the arrears of rent as alleged or at all,
and pleaded that in all the circumstances it would be unreasonable in any event
to grant a possession order, having regard to the matters of mitigation
concisely set forth in the pleading. By counterclaim, the tenant alleged that
on January 29 1985 a section 9(1A) notice had been served upon the landlords by
the local authority alleging substantial disrepair to the dwelling and pleading
that thereafter the landlords’ agents carried out works which had the
consequence, inter alia, that the tenant and his family had temporarily
to leave the dwelling; then, relying upon section 11 of the Landlord and Tenant
Act 1985, alleged breach by the landlords of the implied term of the tenancy
that ‘the plaintiff should keep the structure of the dwelling in repair’.
Particulars of
want and repair were pleaded as follows: ‘That the defendant will rely upon the
matters specified in the Section 9 Notice . . .’ for particulars of the want of
repair.
Relying on those
particulars of want of repair, he claimed damages by reason of special damage
of the cost and expense of having to leave the house while the building works
were carried out in 1986; the cost of cleaning the carpets and general damages
for the inconvenience and distress, not to exceed £500. By reply and defence to
the counterclaim, the landlords admitted the service of the section 9 notice
upon them on January 29 1985; they admitted that building work was undertaken
thereafter; they put in issue the fact that the tenant was forced to give up
occupation of the premises temporarily, and pleaded as follows:
Paragraph 9
of the defence is denied and the plaintiffs would allege that neither they nor
their servants or agents had notice or knowledge of the rot alleged prior to
the defence and counterclaim being served.
They also put
in issue the allegations in the counterclaim.
The case came
on for hearing in the county court, and the landlords succeeded on their claim
for arrears of rent in an amount of £700 at the date of the hearing.
There is no
issue in this court on the determination of the judge upon the arrears of rent
owed by the tenant to the landlords.
The issue in
the county court was upon the counterclaim. Mr Carrott, counsel for the tenant
(the plaintiff in the counterclaim), in the course of his opening applied to
amend the prayer for damages in the counterclaim by deleting the limit of £500
for general damages and substituting a claim within the limit of £2,000. The
reason for that amendment was that the report obtained by the tenant in 1982,
which had been sent to the landlords’ agents in 1983, had not been pleaded and
had not become the subject of an application to amend the counterclaim.
However, it had been included in a bundle of documents put before the judge and
accepted by him and was the subject of comment in evidence by Mr E Keighley
[managing agent for the landlords] and obviously was considered by the judge
himself.
The way that
the case was put on behalf of the tenant was as follows: when the tenant wished
to negotiate a purchase of a reversion from the landlord the tenant obtained
from Mr Rowley a report on the structure, the necessary repairs and sensible
improvements relevant to the valuation of the property for the purposes of the
tenant’s making a bid for the reversion from the landlords. That was served on
the landlords’ agents, thus giving them notice of the contents of that report.
Although the report was obtained and was served on the landlords’ agents for
the purposes of facilitating the offer by the tenant for the reversion, it
sufficiently gave notice to the landlords’ agents of such items of disrepair
as, fairly considered, gave notice of a breach of the landlords’ implied
covenant to keep the structure in good repair; and thereby gave the landlords a
statutory right, under the Landlord and Tenant Act 1985, to inspect the
property in order to satisfy themselves of the existence (if any) of the
alleged breaches of covenant.
In the event,
the landlords, or their agents, took no action by way of inspection for the
purposes of checking the validity of the alleged items of disrepair set forth
in Mr Rowley’s report of December 1982.
The issue
before the judge was, first, had the landlords been given notice of alleged
breaches of the landlords’ implied covenant to repair by the service upon them
of Mr Rowley’s valuation report? If that
question be answered in the affirmative, then the next question was: in January
1983 were there such defects in the state of the structural repair of the property
as to constitute breaches or a breach, as particularised, of the landlords’
implied covenant? If that question were
answered in the affirmative, having regard to the fact that the counterclaim
was for special and general damages for inconvenience, distress and expenses
occasioned to the tenant by the landlords’ breaches of covenant, what is fair
compensation to the tenant for the damage sustained between January 1983 (the
date of the service of the Rowley notice) and June 1986, the date when the inconvenience
and distress ended with the termination of the works carried out by the
landlords between the date of the issue of the section 9 notice and the
practical completion of the works in June 1986 — being a period of two and a
half years?
I would add,
in parenthesis, that the evidence on the counterclaim was fortified by the
evidence of Mrs Howard, the tenant’s wife, who gave evidence of a history of
complaints to the landlords’ agents over a significant period of time in
respect of the bad repair of the house and of the landlords’ failure to
complete those repairs. She also gave evidence of the unpleasant consequences
of the alleged breaches of covenant — in particular, having regard to the
effect of rising and penetrating damp.
The judge
mistrusted her and did not accept her evidence of complaints of want of repair
prior to the date of the section 9 notice in 1985. Therefore, the counterclaim,
as presented, was a claim for damages for breaches of covenant running from
January 1983 but was founded only at the end of the day upon the service of Mr
Rowley’s report upon the landlords’ agents, and the consequences thereof — and
the inferences to be drawn therefrom.
The judge
decided against the tenant:
Putting the
matter concisely, in my view the question is whether it is proved that Mr
Rowley’s report would have put a reasonable landlord on notice. I think not, so
I do not find that there has been a breach of section 11.
The judge went
on to say, having been referred to and having considered three authorities,
that in so far as Mr Keighley ‘was acting as agent only for negotiating a sale,
I reject that submission. Mr Keighley was acting as agent for the landlords at
all times and for all purposes. But I do not accept that the report would put a
reasonable landlord on notice’ — that is to say on notice of a breach of the
implied covenant for the purposes of section 11.
In the notice
of appeal, three grounds of appeal are raised:
1 That the learned assistant recorder
misdirected himself in holding that the report of Mr Alan Rowley FRICS dated
December 22 1982 did not constitute notice to the plaintiffs of the defects
therein contained.
2 That the learned assistant recorder ought to
have found that the said report of Alan Rowley FRICS dated December 22 1982
constituted notice to the plaintiffs of the defects therein contained.
3 That in all the circumstances of the case the
learned assistant recorder reached a conclusion which no reasonable tribunal
could have reached on the facts before him.
Mr Carrott, in
opening this appeal, concisely summarised his submission and, as I understand
the matter, there is no issue between the parties on the propositions of the
law which Mr Carrott submitted.
The first
proposition is that under section 11, a landlord’s liability arises only after
he has notice or actual notice of the defect — so there is no problem about
that.
The second
proposition, founded upon a decision of this court in Dinefwr Borough
Council v Jones (1987) 19 HLR 445*, is that notice need not come
expressly from the tenant, provided that it comes from some responsible source.
That proposition is not in issue.
*Editor’s
note: Also reported at [1987] 2 EGLR 58; (1987) 284 EG 58.
The third
proposition is that the tenant is not obliged to identify the degree or extent
of disrepair but must give such notice as would place a reasonable landlord on
inquiry. The authority for that proposition is the well-known passage in the
speech of Lord Diplock in O’Brien v Robinson [1973] AC 912, and
the earlier case of Griffin v Pillet [1926] 1 KB 17.
The fourth
proposition founded on Dinefwr Borough Council v Jones is put as
follows: that the fact that a landlord receives information in the form of a
written communication which is not specifically for the purpose of making
complaints does not mean that it does not constitute notice. The test is
whether such communication contains sufficient information about the existence
of defects such as would put a reasonable man on inquiry as to whether the
repairs were needed.
Those
propositions not being contested before us, the issue narrows to the question
whether the judge was right, having regard to the circumstances explaining the
origin and production of Mr Rowley’s report, and its contents, in holding that
that report would not put a reasonable landlord on notice of a possible breach
of his implied covenant under section 11.
Mr Rowley’s
report begins with this introduction:
In accordance
with your recent instructions for me to carry out a survey of the above
property and report to you upon its condition, together with estimate of cost
of repairs and valuation in connection with your intended purchase as a sitting
tenant, I inspected the property today and would report as follows:
There is then
a paragraph headed:
Construction
and Condition: It is understood that you are mainly concerned with the cost of
putting the property into a good condition, together with an assurance that the
basic structure is sound. I shall therefore give a brief description of the
constructional details, followed by an itemised summary of repair and
improvement work required, together with my opinion as to the cause of the
defect, and approximate cost of work required.
Then, after a
description of the structural characteristics, there follows a heading: ‘Repair
and Improvement Required’:
Walls. There
were no signs of abnormal foundation movement, and the walls are, in the main,
structurally sound, but allow the penetration of damp to the inside finish. A
slight outward bow in the front elevation piers was noted at
There is evidence of rising damp in the offshoot kitchen and rear elevation.
Then follow a
list of subparagraphs, listing items which are described as works of repair or
improvement.
They are:
1 Provide full damp-proof course, including
replastering — £450.
2 Point chimney stacks, and front and rear
elevations — £250.
3 Re-render and Tyrolean finish gable wall
(rendering thin, and allows damp penetration) — £200.
4 Replace lintel over second floor bedroom
window — £150.
5 Render all elevations of offshoot kitchen,
and finish as per gable (all brick walls in poor condition and allow damp
entry) — £100.
6 Rebuild top two feet height of rear brick
retainer wall to garden (wall is leaning and brickwork is loose). Side brick
boundary wall assumed to be other party’s responsibility — £75
7 Provide air bricks for dining room and lounge
floors on front and rear elevations (no ventilation to floor) — £100.
9 Replaster where necessary to inside face of
gable wall (damp penetration has affected plaster) — £30.
12 Re-fix loose slates — £40.
13 Fix new flashings to chimney stacks (severe
damp in attic bedroom) — £70.
Mr Rowley was
not able to make a full examination of the floors because he did not want to
pull up the carpets and displace the furniture.
Then under the
heading ‘Joinery Goods’:
17 Replace rotten sections of front bay window —
£50.
18 Replace kitchen external door and frame
(becoming rotten and hinges broken) — £60.
19 Replace sliding sash windows in front bedroom
and dining room (sections rotten, parts not operating, and damp penetration) —
£200.
20 Check, and replace where necessary, timber
gutters (kitchen wall particularly damp) — £50.
Mr Rowley
totals the repair work in the sum of £2,295 and proceeds with a summary and
valuation, giving figures, and then says:
If the
property was on the market with vacant possession, it is my opinion that a
purchaser would consider the value when improved, and deduct the approximate
cost. The likely selling price would therefore be £13,000 less repairs (£2,300)
and improvements (say £1,200 for central heating and kitchen units), giving a
figure of £9,500.
He then gives
recommendations as an experienced negotiator.
On behalf of
the appellant it is submitted that here is a document giving explicit notice to
the landlords or their agents of such items of want of repair and necessary
works to put the structure into a proper condition which would put a reasonable
landlord on notice of a prima facie breach of his implied obligations to
repair. Therefore, in the circumstances the landlords or their agents did not
so regard Mr Rowley’s report (we are told) and did not take any steps to
inspect with a view to checking the validity of Mr Rowley’s itemised
complaints.
On behalf of
the respondents it is submitted that this document was accepted by the
landlords’ agents as being a document which it is stated to be, namely, a
report upon condition for the purposes of valuation in connection with an
intended purchase by sitting tenant. Although the respondents do not challenge
the validity of the text in the report, counsel on their behalf makes two
submissions: first, this is what Mr Rowley recommended as the work required to
put the property into sound, marketable condition for the purchase of the
reversion on the basis that the work would have to be carried out by the tenant
and deducted from the purchase bid. There is nothing in the report that in
terms goes to the urgency of the repairs, and there is nothing as to the
consequences to the occupier of the defects which Mr Rowley set out. There is a
world of difference between giving notice to a landlord of a list of such defects
as would qualify for the purposes of a breach of a landlord’s covenant to
repair, as compared with a list of items that a reasonable purchaser would be
likely to want to carry out for the purpose of assessing the amount he will
have to spend if he purchases the property, thus reducing the quantum of his
offer — and that is all that this document was intended for, and all that the
landlords or their agents reasonably regarded the document to be. Hence, no
notice of a section 11 breach.
The judge
accepted that submission. With respect to him, I would disagree. In my view,
this report by the tenant’s surveyor, which was served upon the landlords’
agents, though served for the immediate purpose of aiding the tenant in his
projected bid for the reversion, gave the landlords’ agents and thus, for
relevant purposes, the landlords, notice of serious and significant wants of
repair which, as the landlords knew (or ought to have known and which the
tenant had not known at the time) constituted a breach of the landlords’
implied covenant to repair.
I would
therefore, with respect, disagree with the finding of the judge which, though
an inference of fact, is such that in my view it was an inference of fact which
the evidence did not sustain, which leads to a different legal consequence from
the consequence accepted by the learned judge. So on the ratio of the judge’s
decision, I would uphold the submission made on behalf of the appellant and
hold that notice was given in January 1983 to the landlords’ agents and thus to
the landlords, in terms that should have brought home to a reasonable landlord
allegations of such breaches of the landlords’ obligations to repair the
structure as to constitute a breach of the landlords’ implied obligation to
repair.
That brings me
to the second matter. Although it was not necessary in the circumstances for
the judge to proceed any further, in fact he did. In his judgment he said:
If I am wrong
about whether there has been a breach of the landlords’ covenant, it seems to
me I ought to say what measure of damages I would have awarded. I have not
found the defendant’s wife a very helpful witness. It is difficult for me to
act on anything she has said to me. Doing the best I can from her and the
section 9 notice and from Mr Rowley, I would have assessed damages at £450 from
the beginning of 1983 to June 1985. That is the best I can achieve on the
evidence before me.
It is
submitted on behalf of the respondents that even given that the judge was wrong
concerning the notice of breach given to the landlords, yet there is not
sufficient evidence on which the judge, or this court, could decide in respect
of the period from the beginning of 1983 to June 1985, what the extent of the
breaches was, and, second, that there was nothing, in view of the fact that the
judge regarded Mrs Howard’s evidence as being unsatisfactory, from which a
court could draw a rational inference as to the degree of inconvenience
sustained by the occupier during any period before the period elapsing from the
date of the section 9 notice until the date of the completion of the works in
June 1985 — a period of six months.
There is no
respondents’ notice. In my view, realising that the problem of the assessment
of damages was of no practical importance in his court, the judge proceeded to
do his best to assist the parties, and this court should proceed by making an
assessment of the damages on the evidence before him (difficult though that
task is) on the assumption that there had been a breach of the landlords’
covenant by reason of the fact that the landlords were served with sufficient
notice to put them on inquiry in January 1983. The judge thus assessed the
damages at £450, as I have said, for the assistance of this court.
I can see no
reason to fault that assessment. The evidence was imprecise but, having regard
to Mr Rowley’s report of 1982, and comparing the items which I have enumerated
in that report with a number of the items in the section 9 notice two years
later, there is enough to lead to an inference that, in January 1983, there was
a want of repair largely flowing from rising and penetrating damp as was likely
to lead to some inconvenience; and, second, having regard to the section 9
notice in 1985, on any view by then the damp had reached a stage which was troublesome
to the occupier and on any view the occupier was put to very significant
inconvenience and distress during the period when the works were carried out by
the landlords’ agents, persisting over a period of weeks until June 1985.
In the
circumstances I would hold that the assessment of the judge of £450 was a
reasonable compensation for the tenant by way of special and general damages
for the landlords’ breaches of covenant pursuant to the notice given to them in
January 1983 and should not be disturbed by this court.
I would allow
the appeal, which is an appeal on the counterclaim, and assess damages in the
figure provisionally assessed by the judge. When the arithmetic has been
carried out, the result would be that the plaintiffs succeed on the claim for
arrears (to be calculated) and the appeal succeeds on the counterclaim. As
there are some arrears (the amount of which we shall be told) after deduction
of £450 on the counterclaim, there is no ground for disturbing the judge’s
order for possession, and I would move accordingly.
Agreeing,
PURCHAS LJ said: As we are differing from the judge I add a few words of my
own.
The judge
held, in the terms already cited in the judgment delivered by Sir Roualeyn
Cumming-Bruce, that the dispatch of Mr Rowley’s report in January 1983 to the
landlords was not sufficient to put a
section 11(3) of the Landlord and Tenant Act 1985.
Mr Briden, for
the landlords, accepted that the correct approach to the question of what was
sufficient notice is to be derived from the leading case of O’Brien v Robinson
[1973] AC 912 and he further conceded that in appropriate circumstances (not
those prevailing in this case, however) the notice might be comprised in a
report from a surveyor of the kind that was sent in January 1983.
I wish to
refer only to a short passage from the speech of Lord Morris of Borth-y-gest in
O’Brien at p 926:
The question
does not now arise for express decision as to whether a landlord’s obligation
to repair will arise not only when he receives notice from his tenant of a
defect but also if he receives such notice aliunde or if he has knowledge of
it: but I observe that in Griffin v Pillet [1926] 1 KB 17, where
a lessee gave notice that steps to a dwelling-house needed attention but where
the lessee did not know that the steps were in fact actually dangerous, Wright
J held that a liability rested upon the lessor when subsequently he, though not
his lessee, did acquire knowledge that the steps were actually dangerous. The
purpose of a notice is to impart knowledge that the moment for action under a
covenant to repair has or may have arisen. If a lessor who is under an
obligation to keep premises in repair acquires knowledge that there is a state
of disrepair which may be dangerous, then, even if such knowledge is not shared
by the lessee, I would consider that there arises an obligation on the part of
the lessor to take appropriate action.
Mr Briden
submitted that this notice was not sufficient because it was prepared with a
view to a valuation for the purposes of a purchase of the interest in the
property from the landlords, the inference being that there would tend to be an
exaggeration of the defects in order to reduce the purchase price.
There was
evidence from Mr Keighley, the landlords’ agent, that it was a report which he
would expect to see in relation to a property of this age and nature. But with
respect to this submission, I cannot follow Mr Briden in this. The age and
nature of the property in no way affected the knowledge in fact acquired by the
landlords of defects amounting to breaches of covenant as a result of receiving
that report.
Mr Briden then
submitted that there was a confusion between ‘repairs’ and ‘improvements’; that
there was nothing in the report to indicate at what stage the repairs would be
required, and, finally, that the report was not prepared with the question of
statutory breach in mind.
Those
submissions, with respect to Mr Briden, did not appeal to me as a reason for
saying that the report from Mr Rowley was not such as would put a reasonable
landlord on notice that he was in breach of the statutory covenant.
That the
landlords chose not to take any further steps to discover the position for
themselves can only prejudice them when considering the liability that arises
from notice being given.
Mr Carrott
relied on Dinefwr Borough Council v Jones (1987) 19 HLR 445, to
which my lord has referred, where again it was emphasised that the contents of
the information and its specific directions were not important so long as it
was clear that the necessary notice and information had reached the landlords.
I cite from
the judgment of Bush J at p 450:
It is not
necessary for the report to have specified the exact position of the ceiling,
skirting, doors or the window. This was sufficient information to put the local
authority on inquiry and, for that purpose, was, in my view specific notice in
accordance with the requirement of law.
I accept what
Bush J said as being relevant to the facts of this case.
The assistant
recorder, having held against the tenant on the question of notice, was
effectively discharged from further consideration of the issues before him, but
he went on to consider two other relevant aspects: first, the question of the
relationship between Mr Rowley’s report in January 1983, and the notice served
under section 9(1)(a) of the Housing Act 1957 and the Schedule attached
thereto.
Sir Roualeyn
Cumming-Bruce has already referred in detail to these two reports, so it is not
necessary for me to do more than cite one passage from the judgment of the
assistant recorder where he deals with this matter:
The section 9
notice is to be found at p 8 of the bundle. It was served in January 1985 and
it is argued that the repairs detailed in that notice are substantially the
same as those dealt with in the report of 1982, and it has been argued that I
should find that the lack of repair had been in existence since then. There has
been no expert evidence as to the rate of deterioration and I am not inclined
to speculate as to the length of time the defects have existed. They are more
detailed than Mr Rowley’s criticism and the defects are more numerous. There is
a broad comparison between the two in that it is the same house in each report.
Mr Keighley said he would not be surprised to see Mr Rowley’s report on any
property in a reasonable condition of this type of age and character and I
attach some weight to that although it is not an overwhelming piece of
evidence.
Mr Briden
mounted a submission on the basis of that extract to the effect that there was
no evidence that there was a breach of the landlords’ covenant prior to the
service of the section 9 notice in January 1985. Furthermore, it was suggested
that Mr Keighley’s comment that he would not be surprised ‘to see Mr Rowley’s
report on any property in reasonable condition’ could be relied on as evidence
to the effect that, bearing in mind the qualifications contained in section
11(3) of the Act, there was no breach of the landlords’ covenant.
With respect
to those submissions, which were ably and attractively made by Mr Briden, I am
unable to follow him along that course. I do not think that the judge was
saying that there was no evidence of a breach of the landlords’ covenant prior
to January 1985; and if he was, I would have said he was plainly wrong on all
the evidence and when considering the realistic approach of the two reports and
as to what had occurred in between the two dates with which we are concerned.
I have no
doubt that there was evidence upon which the judge could have found (and indeed
should have found) that there were breaches of the landlords’ covenant in
existence between 1983 and 1985.
Indeed, in his
further approach, to which Sir Roualeyn Cumming-Bruce has referred, in
assessing the damages on the basis of a breach of the landlords’ covenant, it
is imported into what he said that there was evidence of such breaches.
Otherwise that paragraph would merely have said that no damage had been
suffered at all, even if the notice was adequate.
For those
reasons I agree that this appeal should be allowed so far as the counterclaim
is concerned. I also agree that the appropriate figure to be awarded on the
counterclaim is the sum of £450. I am not aware what the practical effect of
that is — whether there is a claim for a set-off or not between the two claims
— but no doubt counsel will inform the court.
The appeal
was allowed on the counterclaim, with costs in the Court of Appeal, but no
alteration to costs order below. Legal aid taxation of appellant’s costs was
ordered.
