Landlord and tenant — Wrongful eviction of residential tenant — Whether assessment of damages could properly include exemplary damages against landlord’s agent — Whether trial judge entitled to make separate orders for damages against each defendant
The first
defendant was the lessee of premises at 71 Salusbury Road, London NW6; the
plaintiff occupied the second-floor flat since 1982 when he moved in as
licensee of a Mr Ayscough, who died in 1988. The first defendant continued to
accept rent from the plaintiff, who became the first defendant’s subtenant by
operation of law. In July 1991 the second defendant, who had begun to manage
the premises on behalf of the first defendant, demanded that the plaintiff pay
a weekly rent of £100 in place of £40. The plaintiff, having refused to pay the
increase, returned home on August 14 1991 to find the locks on his flat had
been changed and some of his possessions outside; it was not until September 19
1991 that he was able to return to his flat. On five occasions during August
1991 the second defendant verbally abused the plaintiff in the presence of
witnesses. In Willesden County Court the recorder awarded £2,000 general
damages, £510 special damages and £1,000 exemplary damages against the first
defendant which, after allowing for arrears of rent, made a total of £2,830
damages. He awarded £1,250 general damages (to include an element of aggravated
damages), exemplary damages of £2,500 and a further sum of £2,647 for property
missing from the flat, against the second defendant. The defendants appealed.
appeal was allowed in part. The recorder had properly directed himself as to
making an award of exemplary damages against the first defendant and had the
evidence to award the special damages and damages for loss of property. The
recorder was entitled to make two separate awards of damages against the
defendants having regard to their different roles: that of the first defendant
as authority and encouragement; and that of the second defendant of execution,
which extended over a much longer period. However, exemplary damages should not
have been awarded against the second defendant as it was not clear that he fell
within Lord Devlin’s second category in Rookes v Barnard.
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
Rookes v Barnard [1964] AC 1129; [1964] 2 WLR 269; [1964] 1 All ER
367; [1964] 1 Lloyd’s Rep 28, HL
This is an
appeal against the decision of Mr Recorder Bridges Adams, sitting in Willesden
County Court, who on January 3 1992 ordered awards of damages against the
defendants, Oswald and Gary Daley, in an action by the plaintiff, Kaselal
Ramdath, for trespass to land and goods.
Lorraine Irwin
(instructed by Goodwin Harte, of Harrow) appeared for the appellant defendants;
Martin Seaward (instructed by T V Edwards & Co) represented the respondent
plaintiff.
Giving the
first judgment, NOURSE LJ said: This is an appeal against an award of
damages made by Mr Recorder Bridges Adams on January 3 1992 in an action in
Willesden County Court arising out of the wrongful eviction of a tenant by the
landlord and his son. The learned recorder described the manner of the eviction
as not simply discourteous, but brutal. He said that the case was an extremely
bad one.
The material
facts, as found by the recorder, can be summarised as follows. The property in
question is a second-floor flat at 71 Salusbury Road, London NW6. The first
defendant, Mr Oswald Daley, is the lessee of those and other premises at that
address. The plaintiff, Mr Kaselal Ramdath, has occupied the flat since early
in 1982, when he moved in as the licensee of the subtenant of the flat, a Mr
Ayscough, who died in 1988. The recorder found that the first defendant knew of
Mr Ayscough’s death shortly after it occurred, but continued to accept rent
from the plaintiff. On the basis of that finding he held that the plaintiff
became the first defendant’s subtenant by implication of law. None of that is
in issue on this appeal.
It appears
that until the summer of 1991 relations between the plaintiff and the first
defendant and his son, the second defendant Mr Gary Daley, were perfectly
normal. The recorder evidently thought that the events I have to recount may
have been caused by the fact that, in the summer of 1991, the rent payable by
the first defendant under his lease of the premises as a whole was increased
from £4,000 to £11,500 a year. In any event, he found that from about June 1991
onwards the second defendant began to manage the premises on behalf of the
first defendant. At some time in July the second defendant demanded that the
plaintiff’s rent, which had been increased from £35 to £40 a week in the early
part of 1989, should be increased to £100 a week.
The plaintiff,
having refused to pay the increase demanded, returned home on August 14 to find
that the locks on the flat had been changed and that some of his possessions
had been removed into the corridor outside the flat. He immediately contacted
the police and the housing department of the local authority. Notwithstanding
those and other efforts made by him to gain access to the flat, it was not
until September 19 that he felt it safe to return to the premises. During that
period he spent only one night in the flat. So he was out of occupation for a
period of something under five weeks. When he got back he found that many of
his belongings had gone missing.
Those are the
basic facts of the case, but it is necessary to add that there were further
incidents on August 15, 16, 17, 22 and 28, when the second defendant verbally
abused the plaintiff or threatened him in a serious manner, on each occasion in
the presence of other people — either a local authority officer, one of two
police constables or a friend of the plaintiff. The recorder, having reviewed
the evidence as to all those matters with some care, stated his conclusion as
to the factual position at the bottom of p7 of the note of his judgment:
Although
there were perhaps one or two minor inconsistencies in the evidence given for
the plaintiff broadly speaking I accept it as correct. I find that the first
defendant learnt of Mr Ayscough’s death shortly after it occurred and
thereafter knew perfectly well that he was dealing with the defendant. I find
that the plaintiff enjoyed a tenancy by implication of law. I also accept the
evidence of the plaintiff about his eviction and that of him and his witnesses
about his subsequent harassment and the removal of his possessions.
The recorder
then turned to questions of damages. He dealt first with damages as against the
first defendant. He awarded £2,000 general damages and £510 special damages in
respect of expenses related to the plaintiff’s eviction. He required the
plaintiff to give credit for £680 in respect of unpaid rent, that is to say
rent which, although proffered, had not been accepted by the first defendant.
He also awarded £1,000 by way of exemplary damages. In the result he made a
total award of £2,830 by way of damages against the first defendant.
He then turned
to damages as against the second defendant. At p8 of the note he said:
So far as the
manner of the eviction is concerned, the way in which the plaintiff’s
possessions were treated and the threats to which he was subjected I regard
these matters as being primarily the responsibility of the second defendant.
The manner of the eviction was not simply discourteous, but brutal. The
plaintiff was evicted from what had been his home for many years and of which,
as I have found, he had been the tenant for at least two and a half years. By
way of general damages I award £1,250. I include in this sum an element in
respect of aggravated damages because of the obvious affront to the plaintiff’s
feelings. In addition, I regard this as an appropriate case for awarding
substantial exemplary damages. The second defendant acted with flagrant disregard
of the law as is evidenced by his remark to the police officer on August 15.
The case is an extremely bad one and I award exemplary damages in the sum of
£2,500. I have seen a schedule of property missing from the plaintiff’s flat of
which the total value is put forward as £2,647. Neither the items nor the
values put forward in respect of this part of the claim were seriously
challenged and I accordingly direct that the second defendant pay this sum to
the plaintiff.
In the result
the recorder awarded total damages against the second defendant of £6,397. I
will refer to a later passage in his judgment in due course.
In support of
their appeal to this court the defendants have advanced seven grounds of
appeal, of which only three are of any substance. I will deal with them in a
somewhat different order from that in which they have been dealt with by Miss
Irwin on their behalf. I deal first with the insubstantial grounds.
The ground
advanced in para 5(ii) of the notice of appeal is that the recorder misdirected
himself on the burden and standard of proof when he held that the first
defendant was liable to pay exemplary damages to the plaintiff. It was
established by the decision of this court in Drane v Evangelou
[1978] 1 WLR 455 that an action for wrongful eviction, more accurately an
action for trespass to land and goods, is capable of falling within the second
category of cases in which, according to the speech of Lord Devlin in Rookes
v Barnard [1964] AC 1129, at p1,227, exemplary damages may be awarded.
Lord Devlin said:
Where a
defendant with a cynical disregard for a plaintiff’s rights has calculated that
the money to be made out of his wrongdoing will probably exceed the damages at
risk, it is necessary for the law to show that it cannot be broken with
impunity. This category is not confined to moneymaking in the strict sense. It
extends to cases in which the defendant is seeking to gain at the expense of
the plaintiff some object — perhaps some property which he covets — which
either he could not obtain at all or not obtain except at a price greater than
he wants to put down. Exemplary damages can properly be awarded whenever it is
necessary to teach a wrongdoer that tort does not pay.
In Drane
v Evangelou, at p459F, Lord Denning MR, having read the second part of
this passage, said:
To my mind
this category includes cases of unlawful eviction of a tenant. The landlord
seeks to gain possession at the expense of the tenant — so as to keep or get a
rent higher than that awarded by the rent tribunal — or to get possession from
a tenant who is protected by the Rent Acts. So he resorts to harassing tactics.
Such conduct can be punished now by the criminal law. But it can also be
punished by the civil law by an award of exemplary damages.
In support of
ground 5(ii) Miss Irwin has submitted that the recorder’s judgment does not
sufficiently lay the basis for an award of exemplary damages against the first
defendant. I do not accept that submission. In my view, it is clear that the
judgment, read as a whole, contains a finding, perhaps implied rather than
expressed, and perhaps not expressed because the recorder regarded the matter
as so obvious, that the first defendant had authorised and encouraged the
second defendant to throw the plaintiff out of the flat. On that footing this
was a case where the recorder was clearly entitled to make an award of
exemplary damages against the first defendant. The amount of it has not been
questioned. I need say no more than that it seems to me to have been a
perfectly proper award to make.
I go next to
ground 5(iii), which claims that the recorder misdirected himself on the burden
and standard of proof when he held that the claim for special damages of £510
against the first defendant was not seriously challenged and thereby proved.
Once again there is nothing in this ground of appeal. Miss Irwin has complained
that the £510, which was calculated by reference to the plaintiff’s estimate of
his living-out expenses during the period when he was out of occupation, was
not sufficiently particularised and, further, that it was or may have been at
variance with the £50 a week he said he had had to pay for his temporary
accommodation with friends. As to that, I need say only that the plaintiff gave
the evidence before the recorder, who was entitled to accept and act on it. It
appears that the defendants, who were not represented at the trial, did not
cross-examine him, or did not cross-examine him at all effectively, on that
point. Accordingly, there was no reason why the recorder should not have
accepted his evidence. This ground of appeal also fails.
I turn next to
ground 3, which is that there was no, alternatively insufficient, evidence to
support the recorder’s finding that the second defendant had removed any and/or
particular items of the plaintiff’s property from the flat. Very similar
observations apply to this ground of appeal. A schedule was put in and the
plaintiff deposed to the accuracy of it when giving his evidence. There was
therefore evidence on which the recorder could conclude that the losses to
which that schedule related had in fact been suffered; and Mr Seaward, who
appeared for the plaintiff in the court below and has also appeared before us,
has explained the one minor mathematical curiosity in an entirely satisfactory
way. Accordingly, this ground of appeal fails. The figure of £2,647 for special
damages against the second defendant stands.
Finally, among
the insubstantial grounds of appeal, I refer to ground 4, which claims that
there was no, alternatively insufficient, evidence to support the recorder’s
finding that the plaintiff had sustained ascertainable losses for which the
defendants were liable to compensate the plaintiff for any special damages.
That is putting in a general way only what has already been put in a particular
way in grounds 5(iii) and 3. It adds nothing to those grounds and I need say no
more about it.
I now come to
the three grounds of appeal which are of some substance. Grounds 7(i) and 7(ii)
run together. Ground 7(i) claims that the recorder erred in law when he made
two separate awards of damages against the defendants; ground 7(ii) claims that
he erred in law when he did not pronounce judgment upon the plaintiff’s overall
compensatable losses. Miss Irwin’s point here is that, at any rate so far as
the eviction was concerned, the defendants were liable, if they were liable at
all, as joint tortfeasors. If, as I have now held to have been the case, the
recorder found that the first defendant authorised and encouraged the second
defendant to throw the plaintiff out, then, at any rate up to that stage, the
defendants were joint tortfeasors. Miss Irwin goes on to say that since a joint
award was not made there is a danger, she would say a probability, that there
has been an element of double counting and double recovery by which the
plaintiff has wrongly profited.
For a while
this point has troubled me, but on the whole I think that the explanation given
by Mr Seaward is correct. Mr Seaward asked the recorder to make a joint award
against both defendants, but he did not do so. His reason for that is expressed
on p9 of the note:
I was asked
to make a joint order against both defendants but in view of the fact that one
of them is liable in contract and tort and the other in tort only, their
different degrees of involvement and the difficulty of assessing whether at all
times the second defendant was acting within the scope of his authority as
agent for the first defendant I decline to do so.
Originally, Mr
Seaward was disposed to explain the recorder’s separate awards on the footing
that he had drawn a line as at August 15, the last date on which there was any
evidence of the first defendant himself having played a part in the matter.
However, after an exchange with the court, his preferred explanation is that
the recorder was really distinguishing between authority and encouragement —
the role of the first defendant — on the one hand, and execution — the role of
the second defendant — on the other. It seems to me that that is the most
probable explanation of the course which the recorder took. On that footing I
do not see why he should not have made separate awards, bearing in mind
particularly that the second defendant’s physical involvement in the matter was
very much greater than the first defendant’s and extended over a much longer
period. In the circumstances, I would reject grounds 7(i) and (ii), emphasising
that the general damages awarded against the first and second defendants
respectively were by no means excessive.
I come finally
to ground 7(iii), which claims that the recorder erred in law when he made two
distinct and separate awards of exemplary damages against the defendants. The
first point taken here is that the second defendant was someone who could not
and did not fall within Lord Devlin’s second category. If that is correct,
there is no way in which exemplary damages could properly have been awarded
against the second defendant.
In order to
support the second defendant’s inclusion in the second category Mr Seaward has
made a number of telling points. He has
passages in the oral evidence, which, he submits, clearly show that the second
defendant was associating himself with the interests of the first defendant and
was, as he put it, assuming the mantle of the landlord. There was evidence to
show that the second defendant was making a deliberate calculation of what was
in his best financial interests and was acting accordingly. I take full account
of these points, but the evidence does not, in my view, show more than that the
second defendant was closely concerning himself with the first defendant’s
interests. It does not show, on a balance of probabilities, that the second
defendant himself had a sufficient interest in the matter to bring him within
Lord Devlin’s second category.
Before we
could hold that the recorder was entitled to make an award of exemplary damages
against the second defendant we would have to be satisfied that he had applied
the right test. Mr Seaward has told us that he referred the recorder to a
passage in Megarry’s Rent Acts, 11th ed, vol 1, pp384-385 under the
heading ‘Aggravated and Exemplary Damages’. But he very properly accepts that
that passage does not spell out the test in sufficient detail.
Mr Seaward
next submitted that, even so, it is open to us in this court, on the authority
of what was said by Lawton and Goff LJJ in Drane v Evangelou at
pp461H and 463D, to treat the £2,500 as aggravated damages and to increase the
award of general damages accordingly. In Drane v Evangelou this
court was confronted with one global award of £1,000, which the judge in the
court below had described as exemplary damages. Both Lawton and Goff LJJ
thought that that figure would not have been excessive for aggravated damages
so that, even if exemplary damages ought not to have been awarded, the figure
could be upheld as aggravated damages. Basing himself on that, Mr Seaward
submits that we should take the same course here.
While that
submission is an attractive one, I feel unable to accept it in a case where the
recorder has expressly included in the general damages of £1,250 ‘an element in
respect of aggravated damages because of the obvious affront to the plaintiff’s
feelings’. Aggravated damages and exemplary damages are not only different in
themselves; they are awarded for two different purposes. Aggravated damages are
awarded to compensate the plaintiff for injury to his proper feelings of
dignity and pride and for aggravation generally, whereas exemplary damages are
awarded in order to punish the defendant. So I do not think it permissible for
us to hold that the figure which the recorder thought was sufficient for
general damages, including aggravated damages, ought to be increased by adding
to it the whole or a part of the sum which he awarded as exemplary damages. As
a last resort, Mr Seaward asked us to increase the amount of the exemplary
damages awarded against the first defendant. It seems to me to be clear that
there is no way in which we could properly take that course.
I have
therefore come to the conclusion, with some reluctance, that the second
defendant’s appeal must be allowed in relation to the sum of £2,500 exemplary
damages. I express my reluctance for two reasons: first, because I think this
may have been a case where the second defendant was fortunate not to have been
represented in the court below; if he had been, his legal representative would
have had to explain to the recorder how it was that he did not fall within Lord
Devlin’s second category. He might not have succeeded in satisfying the
recorder that he did, on the facts, fall outside that category. Second, looking
at the recorder’s figure for damages against the second defendant as a whole,
namely £6,397, I cannot say that it was at all excessive in the light of the
conduct of the second defendant, which, with every justification, the recorder
described as brutal.
I would
dismiss the first defendant’s appeal. I would allow the second defendant’s
appeal to the extent stated and reduce the damages awarded against him from
£6,397 to £3,897.
STEYN LJ agreed and did not add anything.
First
defendant’s appeal dismissed; second defendant’s appeal allowed to the extent
indicated in the judgment.