England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Roger Cooke)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Friday, 23rd February 2001

Friday, 23rd February 2001

1. LORD JUSTICE LAWS: In this appeal my Lord and I gave our judgments on 19th January 2001. The matter has been restored before us this morning because there is a dispute between the parties as to the proper form of order to be made in consequence of the judgments we then delivered.
2. The shortest way into the case is by reference to some brief passages in the judgment given by myself at paragraph 1:

"The primary matter before us in this case is the defendants' appeal, brought with permission granted by the court below, against a part of the judgment of His Honour Judge Roger Cooke given in the Central London County Court on 8th February 2000 and his order made pursuant to that judgment on 14th March 2000. The judge below granted permission to appeal in relation to one issue only, namely the defendants' (appellants as I will hereafter call them) contention that in his judgment he had misconstrued a repairing covenant contained in certain leases to which the appellants and the respondents were parties as landlords and tenants respectively. The tenants desire also to appeal against two other aspects of the judge's judgment, but for those permission below was refused. The appellants propose to seek permission from this court. We have deferred consideration of that matter until after delivering judgment upon the single issue for which permission has been granted."

3. The premises in question are a substantial complex of flats at Epsom. The issue in relation to which the judge gave leave to appeal was the proper construction of the landlords' repairing covenant. The issue arose because there was a claim by the tenants for damages for breach of covenant arising out of disrepairs in relation to certain roof terraces. The question was whether or not the necessary works fell within the landlords' covenant.
4. The learned judge described the particular complaints as to disrepair as follows, as quoted at paragraph 10 of my judgment:

"There are three areas of complaint.

(a) water penetration (vertical) through the main roof.

(b) water penetration (vertical) of GBP's flat [GBP being one of the tenants, an elderly gentleman called Mr. Petersson] through the small roof terrace at the upper level of Flat 51.

(c) lateral water penetration of Flat 51 through the adjacent roof terrace.

There is no doubt as to (a) [the main roof]. Subject to the issue (below) as to whether what is complained of arises through want of repair it is clearly within the landlords' covenant and nobody says otherwise.

(b) and (c) though physically different give rise to the same problem. The question in short order is whether the landlords are responsible for repairs to the roof terraces. It is necessary to consider the terms of the leases which are all in identical form ..."

5. And then in due course I also proceeded to go into the relevant provisions in the leases.
6. In the result, we allowed the appeal. The consequence was that the roof terraces on flat 51 were held not to form part of the main structure (as it was called in the lease) for the purposes of the landlords' repairing obligation. That meant that the landlords were not liable for damage emanating from the roof terraces of flat 51 under their repairing covenant.
7. A draft order following the hearing in this court was prepared. It is necessary to read most of that because it identifies precisely the dispute which we must resolve today:

"ON READING the Notice of Appeal dated 20th March 2000 filed on behalf of the Appellant appealing from the Judgment of His Honour Judge Roger Cooke handed down on 8th February 2000 and the order of the said Judge made pursuant thereto on 14th March 2000, by which Judgment and Order the Judge ordered, inter alia, that:

(1) The above named First Respondent do recover the sum of £14,615 from the Appellant by way of damages for breach of repairing covenant;

(2) The above named Second Respondent do recover from the Defendant the sum of £3,825 by way of damages for breach of repairing covenant;

(3) The above named Third Respondent do recover from the Defendant the sum of £16,205.30 by way of damages for breach of repairing covenant;

(4) The Respondents do recover their costs to be subject to a detailed assessment ...

(5) There be specific performance of the Appellant's repairing covenant in the leases of Flat 49 and 51 Pitt Place Epsom Surrey.

.....

"IT IS ORDERED THAT

1. The Appellant's appeal on the point for which permission was granted by his Honour Judge Roger Cooke be allowed..."

and then there is added in square brackets:

"[and that those parts of the Order made on 14th March 2000 set out above be set aside]."

8. It is those words which are the subject of dispute. The order then continues:

"2. The matter be remitted back to the Central London County Court for further consideration on the following matters: the damages claimed by the Respondents; the claim for specific performance and the question of costs."

9. There were then orders for costs and in relation to an application for leave to appeal to their Lordships' House.
10. The respondents (the claimants in the original action and the tenants in the block of flats) desire that the order be drawn so as not to include the words in square brackets in paragraph 1. The consequence of that, if we were to accede to it, would be that the specific orders made by the judge and recited as I have set them out would remain in being as orders of the court. Mr. Holland for the successful appellants (the landlords) submits that that would be wrong in principle. He submits that the orders made by the judge below must fall to be set aside, given the judgment of this court.
11. The reason why that question has generated the heat that it has lies in the background. I do not propose to go into that at any length. However, there is a very long and bitter history in relation to this dispute: in a sentence the tenants, understanding that the landlords' only asset is the freehold in the block of flats, desire to be secure in relation to the future enforcement of what they believe will be large sums by way of costs and damages which will be due to them when all this litigation is over. At present they have a caution registered against the property. The propriety of that is itself the subject of bitter dispute. But any basis for a security of that kind which might exist depends, so it is perceived on the tenants' behalf, on these orders of the judge below remaining in being; since otherwise it is feared that the freehold will be sold and the proceeds put beyond the reach of the tenants. In fact, as Mr. Holland has reminded us today, the landlords have given an undertaking, which is still in place, to the County Court; its terms (as I understand it) are that they will not dispose of the freehold without 14 days' notice to the tenants. At all events, this is the background that has generated the argument in relation to the right order to be made following the judgment of this court.
12. It seems to me that the question can be disposed of very shortly. It is beyond the possibility of sensible argument that at least part of the necessary basis for all the specific orders made by his Honour Judge Cooke cannot stand in light of this court's judgment. It is true that this court was not concerned with the claim for breach of covenant relating to damage emanating from the main roof of block C of the flats. But the sums of money for which the judge gave judgment do not within themselves differentiate between so much due in relation to the main roof and so much due in relation to the terraces of flat 51. They are, as one sees immediately from the orders themselves, single sums.
13. In those circumstances it seems to me that the orders cannot stand in light of our judgment. The basis for them has been undermined. If they were allowed to stand then as a matter of law the respondent tenants would remain in theory entitled to enforce them to the fullest extent tomorrow. The fact that at the end of day (as Mr. Pickering vigorously pressed upon us) the respondents may well be shown still to be entitled to recover substantial sums -- maybe sums barely reduced from those for which Judge Cooke gave judgment -- does not seem to me to make the least difference. We are concerned with whether the orders made by the judge below for the reasons he gave in his judgment of February last year can now stand. In my judgment plainly they cannot.
14. The position is little different from that arising in a personal injury case where the defendants bring an appeal against an award of damages at first instance, but the judge's finding of liability is untouched. Then it may be that upon such an appeal this court will conclude that the damages were too high and there must be a new trial as to damages. But unless the damages can be split in some identifiable and uncontentious way the orders made by the judge below would be set aside and the matter would be gone into at a fresh trial; notwithstanding that it is plain to everyone that the claimant is entitled to some damages. It seems to me that the same applies in this case.
15. The only proper course is to set aside the orders. Accordingly for my part I would make the order of this court in the form that includes the words in square brackets after paragraph 1.
16. As to Mr. Pickering's clients' potential recourse in order to obtain security for such indebtedness as ultimately they may be shown to be owed by the landlords, the law provides appropriate remedies. I do not think it is either necessary or appropriate to go further into that.
17. For my part, then, I would make the order with the words in square brackets included.
18. MR. JUSTICE PENRY-DAVEY: I agree.
ORDER: Order as indicated; appellants to have costs of today, subject to detailed assessment. (ORDER NOT PART OF APPROVED JUDGMENT)