Tenant claiming compensation for breach of repairing covenant — Council undertaking to carry out repairs within specified dates — Works not carried out — Tenant seeking to enforce undertaking — Court imposing penalty on council for breach of undertaking — Whether court having discretion to take into account previous undertakings not honoured by council — Council’s appeal dismissed
The plaintiff, a secured tenant, issued proceedings for breach of a repairing covenant and for a mandatory order to carry out remedial work. A consent order was made which contained an undertaking from the defendant council to carry out the repairs within specified dates. The council were keen to avoid the cost of repairs because they were estimated to be substantial and required special permission due to the magnitude of the works. They sought an alternative solution by offering permanent accommodation to the plaintiff. The plaintiff was prepared to accept such accommodation provided it was suitable, but rejected the council’s various offers.
The works were not started or finished within the specified dates and the plaintiff sought to enforce the undertaking. The council did not dispute their breach. The county court judge, when considering the appropriate penalty, took into account the numerous previous cases where undertakings had been given to the court which had not been honoured and imposed a £5,000 fine on the council. They appealed on the ground that the judge had wrongly taken into account previous breaches of undertakings in other cases. However, the plaintiff argued that the judge had been entitled to take judicial notice of his local knowledge in this respect in considering whether the council’s conduct had been so notorious, or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source, that evidence of the existence of their previous breaches was not necessary. In those circumstances it had been an appropriate penalty to impose.
Leave was given by the Court of Appeal to adduce affidavit evidence that the council had been found to be in contempt of court in one occasion in the 12 months prior to the county court hearing.
Held The appeal was dismissed.
1. The judge was entitled to take judicial notice of his “special (or local) knowledge” of how the council had conducted themselves in relation to undertakings given to the court in similar cases in order to determine whether their conduct had been “so notorious, or clearly established or clearly susceptible by demonstration by reference to a readily obtainable or authoritative source”, such as court records. The relevant conduct of the council had not fallen into the category where the judge had been obliged to take it into account, but the judge had had a wide discretion to take notice of it if he so elected.
2. Although the evidence submitted by the council showed that it had only once been in contempt, the judge would have known from his own experience, and from court records, of occasions where breaches had been proved against, or admitted by, the council and had been subsequently settled without a ruling as a term of the settlement. Those facts were clearly relevant to the issue of what the appropriate sanction was to have been, and therefore the judge had not erred in the exercise of his discretion.
Ranjit Bhose (instructed by the solicitor to Hackney London Borough Council) appeared for the appellants; the respondent did not appear and was not represented.
