England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Claim No: HC08CO0879

A. Outline of proceedings and parties

1. The Claimant, Mr Terry New, is a sculptor. He currently teaches 3 days a week for 30 weeks of the year at the Royal Academy Schools, where he is head of Fine Art, but he also continues to produce and sell work of his own. For this purpose, he maintains a studio at 8 Resolution Way, Deptford and, until April 2007, he also rented a lock-up garage at a site known as 78-120 Florence Terrace, London SE14, close to both his studio and his home at 74 Florence Road. He used this garage to store various artefacts, including 16 moulds from which he could cast copies of his sculptures. On 27 April 2007, Mr New discovered that this garage had been pulled down without his prior knowledge and when he visited the site the following day it became clear that he had lost the whole of the contents he had stored there. He has brought these proceedings to recover damages for the loss of the garage and its contents.
2. The First and Second Defendants were his landlords of the garage. Mr New's tenancy had been granted on 8 December 2002 by a previous owner, Beavercroft Ltd, which owned the whole site at 78-120 Florence Terrace. The site comprised two rows of lock-up garages divided by a roadway. There were 43 garages in all. The First and Second Defendants acquired the site from Beavercroft Ltd subject to Mr New's tenancy (and others) in about September 2004. Planning permission had by then been granted for a development of residential flats on the site but the First and Second Defendants successfully achieved a revised planning permission for the development of the site as townhouses, whereupon they decided to sell it on. By a contract dated 30 March 2007, the First and Second Defendants agreed to sell the site to the Third Defendant ("Mindcross") with a projected completion date of 29 May 2007 or earlier by arrangement. It was Mindcross which demolished the garages and cleared the site during the week commencing Monday 23 April 2007. Mindcross's case is that that was done with the authority of the First and Second Defendants, which they deny. The First and Second Defendants on the one hand and Mindcross on the other have respectively brought proceedings against the other under CPR Part 20 for contribution or indemnity, depending on what facts are established at trial.
3. There is one other party before me, namely Mr Andrew Pennell. He was the agent of the First Defendant in its negotiations with Mindcross, the First Defendant acting for itself and the Second Defendant in that respect. Mindcross alleges in its Defence and its contribution proceedings that (in summary) Mr Pennell was the person who authorised Mindcross's access to the site when the garages were demolished and the site cleared. The First and Second Defendants contend that, if that is right, Mr Pennell acted in breach of his duty to them and should pay damages for any loss arising. Mr Pennell denies that claim.
4. The hearing before me concerns only issues as to liability, as directed by Deputy Master Mark at a case management conference held on 25 September 2008. The specific issues which now fall to be determined have been refined during the course of the hearing before me, as I will now explain.

Issues

5. When the case was opened to me, a preliminary issue or series of issues fell to be determined as to the exact status of Mr New's tenancy in April 2007. The First and Second Defendants were then maintaining that they had served a notice to quit on Mr New under the terms of his tenancy and that his contractual tenancy had thereby been brought to an end before the garages were demolished. Mr New denied that allegation but further contended that, even if it were true, he continued as tenant under the provisions of the Landlord and Tenant Act 1954 after the determination of the contractual tenancy, as the garage was then being occupied for the purpose of a business carried on by him. The First and Second Defendants sought to meet the latter contention by arguing that Mr New had no rights under the 1954 Act because (a) his occupation was not for the purpose of any business carried on by him or (b) any business he may have in fact carried on would have been in breach of a prohibition in the tenancy of use for business purposes so that, in the absence of any evidence of any relevant landlord's consent or acquiescence, the tenancy was excluded from protection by section 23(4) of the Act. During the course of the hearing - indeed, after the First and Second Defendants' principal witnesses had given evidence as to the service of the alleged notice to quit - the claim that the contractual tenancy had been brought to an end was abandoned. (I comment further on this turn of events below). The First and Second Defendants also admitted that Mr New's occupation was for the purpose of a business carried on by him. Thus the only outstanding issue which the parties still invite me to determine on this aspect of the matter is whether Mr New's tenancy contained a prohibition on use for business purposes. The answer no doubt has an effect on the assessment of any damages for the demolition of the garage.
6. Apart from this issue of construction, the issues I have to determine are as to which (if any) of the Defendants and Mr Pennell are responsible in fact and liable in law for the demolition of Mr New's garage and the loss of its contents. As it is admitted that Mindcross demolished all the garages on the site (including Mr New's) and cleared the site during the week commencing 23 April 2007, the specific issues which arise are

(a) is Mindcross liable in trespass for demolishing Mr New's garage;

(b) is Mindcross liable in trespass or wrongful interference with goods for clearing Mr New's goods;

(c) did the First and Second Defendants authorise Mindcross (i) to demolish Mr New's garage or (ii) to clear his goods, so as to be liable with Mindcross for trespass and/or wrongful interference, and/or so as to be liable for breach of the covenant for quiet enjoyment implied into Mr New's tenancy;

(d) if such authority was given, was it given by Mr Pennell in breach of his duties to the First and Second Defendants so as to make him liable to them for giving it;

(e) if no such authority was given, are the First and Second Defendants still liable for trespass, wrongful interference and/or breach of covenant on the grounds (i) that Mindcross's actions were the foreseeable consequences of letting Mindcross into occupation of the site (ii) that the First and Second Defendants cannot escape liability for Mindcross's actions because they amounted to a breach of a personal, non-delegable duty on the part of the First and Second Defendants to Mr New and (iii) that the First and Second Defendants adopted or ratified Mindcross's actions after the event;

(f) if the First and Second Defendants are liable with the Third Defendant for any loss, how should their respective contribution and indemnity claims be resolved?

7. The issues at (e) above were introduced by amendment to the Particulars of Claim for which I gave permission during the hearing.
8. I will deal with the issue of construction first and then turn to the events of 2007 concerning the demolition of Mr New's garage and the destruction of his property.

C. The issue of construction

9. Mr New's tenancy was a six monthly tenancy incorporating the terms and conditions set out in a single-page document dated 8 December 2002 signed that day by Mr New and the agent of Beavercroft Ltd. By clause 1 of this document, Mr New agreed to "rent the premises for use as a private garage or for storage .... and not to sublet".
10. Both Mr New and the First and Second Defendants accept that part of the intention behind this clause was to impose a restriction on the use of the premises for the duration of the tenancy. I agree with this interpretation. Although much of clause 1 expands upon the obligation to "rent the premises" by providing when and how the rent should be paid, the part of clause 1 I have quoted above appears to be intended to introduce two further obligations, namely (i) not to use the premises for any purpose other than as stated and (ii) not to sub-let. The composite or rolled-up wording of the first part of clause 1 (as quoted above) was entirely appropriate to a short and unsophisticated document such as this tenancy agreement, which could be expected to set out the tenant's obligations clearly and briefly.
11. The issue then is whether the restriction "for use as a private garage or for storage" prohibits the tenant from using the garage for storage for business purposes. I cannot see any basis for so construing this clause. As a matter of syntax, the word "private"does not qualify the word "storage", nor is there any other express qualification as to the type of storage permitted. The First and Second Defendants contend that the clause should be looked at more broadly, and in context, having regard to the fact that these garages were built as domestic garages to serve tenants of the local authority. I agree that the document should be construed in its proper context but I do not agree that the context here enables one to introduce a qualification to the expressly permitted use for "storage". It is to be noted that the tenancy was granted by a commercial landlord, Beavercroft Ltd, to a tenant who did not live in any of the flats which the garages were originally intended to serve: the domestic link had therefore been broken before the tenancy was granted.
12. The First and Second Defendants point to possible difficulties in construction of the restriction, particularly when one considers the storage of vehicles used for commercial purposes: on the one hand, use as a "private" garage precludes use for commercial vehicles whereas, on the other, use for "storage" without that qualification would seem to allow it. I understand the point but it does not follow from it that the restriction to "storage" should be further restricted to "private storage". As I see it. the clause was restricting use to that of a private garage (which may include an element of private storage) or storage more generally. Use by a tenant to park commercial vehicles overnight may anyway not fall within either permitted use, either because the vehicles are not "private" or because overnight parking is not "storage". But such considerations are beside the principal point which is that there is nothing in clause 1 to restrict the sort of genuine storage for which Mr New needed to rent the premises, namely the storage of items arising from his work as a sculptor for which he had no immediate use and which he could not house in his studio. I hold therefore that clause 1 does not prohibit storage for business purposes and that Mr New's use of the garage was lawful.

D. The demolition of the garages and the clearance of the site

13. That brings me to the main factual issues which arise on the hearing before me. I have heard evidence from a number of witnesses as to the material events which led up to the demolition of the garages and clearance of the site. There are few documents to record what happened and, perhaps in consequence, there are significant points of difference in the recollections of those involved, including apparent changes in recollection in the course of cross-examination. As a general observation, I would say that the only witness cross-examined before me whose evidence I can completely rely upon is Mr New; but as he only found out what happened after the event, his evidence is of limited assistance on the principal matters in issue. Mr New also called evidence from Mr Edward Smith whose evidence was not challenged and I accept.
14. I would however express my grave misgivings as to the veracity of any of the evidence given by Mr Sadiq Karim and Mr Salim Patel on behalf of the First and Second Defendants. Mr Karim was a director and the 30 per cent owner of the First Defendant. Mr Patel shared an office with him in Forest Gate and, though he appears to have had no formal management role, Mr Patel acted on behalf of the First Defendant from time to time in the relevant sequence of events. Mr Patel's interest in the First Defendant was through a family company, Pearl Holdings Ltd, which owned the remaining 70% of the First Defendant. Mr Karim gave detailed evidence in his witness statement and under oath as to the preparation and service of notices to quit on three tenants of the garages, one of them being said to be Mr New. This evidence was, on its own terms, subject to serious objection, which has in my judgment been fully and fairly summarised at para 8 of the written Closing Submissions of the Claimant. In his evidence Mr Patel associated himself with Mr Karim*s evidence on these matters. However, as I have already indicated, when the evidence was concluded the First and Second Defendants formally abandoned the contention that Mr New's contractual tenancy had been brought to an end by a notice to quit, admitting and conceding that Mr New's tenancy subsisted until at least 24 April 2007. That admission was not accompanied by any explanation, though it plainly contradicted the evidence of Mr Karim and Mr Patel, nor was there any suggestion that either Mr Karim or Mr Patel should return to the witness box to give further evidence on the point. In the absence of any explanation, let alone any innocent and credible explanation, for this volte face, I find it impossible to give any weight to the evidence of Mr Karim or Mr Patel on any matter save in so far as it is or appears to be supported by independent evidence or proper inference.
15. As for the other witnesses, I have fewer misgivings as to the evidence of Mr Pennell or (for Mindcross) Mr Sanjay Agarwal, though they both seemed to me to be exaggerating the clarity of points said to have been the subject of conversations between them and, indeed, the accuracy of their recollection of various events. They also disagreed on important points. As will appear, I found Mr Pennell's evidence to be more reliable than Mr Agarwal's. The other witnesses included the First and Second Defendants' builders, Mr Roger Wade and Mr Alfred Ward, and their informal caretaker at the site, Mr Michael (inevitably known as "Ned") Kelly, all of whose evidence was helpful though not entirely consistent or reliable.
16. On this evidence, and such documents as appear in the trial bundles, I find the following facts.
17. Mr New used his garage to store various possessions. Of particular importance to him were 16 silicone rubber moulds from which he could cast further copies of sculptures he had previously created and exhibited. As he explains in his witness statement, a sculptor's moulds are the life-blood of his business as they enable him to reproduce works, or parts of works, long after they were created, to meet a demand which can continue to arise over many years, prompted by, for instance, word of mouth or a retrospective exhibition. Mr New explained in evidence that the moulds he stored in the garage represented work he had done over the previous 20 years. Some of it was physically very substantial, as appears from the illustrative photographs he has exhibited to his statement; the larger moulds Mr New describes as weighing around 9/2 stone, stacked on top of each other in the garage with wooden planks between them. Smaller moulds were stored on shelves on the wall.
18. In addition to the moulds, Mr New also stored at the garage a number of sculptures, drawings and collages, including 21 original paintings and drawings by his wife, Vicki Reynolds, who has died since the events which gave rise to these proceedings. Mr New also used the garage to store some personal items for which he had no immediate use. Mr New exhibits to his witness statement a full list of the items stored at the garage. The garage must have been very full with all these items stored there. Mr New's friend Mr Smith, another sculptor and teacher who shared his studio and occasionally helped him to move casts and moulds to and from the garage, describes it as "absolutely crammed with things".
19. Mr New was happy with the security of the site. The garage itself only had a single lock, which was integral to the steel handle which opened the up-and-over door; a previous tenant had installed a hasp at the side of the door for a padlock but Mr New did not use it himself. He was content that the site was secure because it was surrounded by a high fence with spiked railings, with the main gate to the site being secured by a large bolt and heavy padlock. I note that Mr New's tenancy agreement required him to "keep the security gate to the premises (where affixed) locked except during entry and exit" (clause 11). Presumably, this was a standard form agreement and a term required of all other tenants. Mr New also knew that Mr Kelly acted as a caretaker of the site. Mr Kelly's home was close by and he could keep an eye on anything that was going on there. Mr New said in evidence that he had not known there to be any problem with security at the site since he had taken the tenancy.
20. When the First and Second Defendants purchased the site, the First Defendant sent Mr New a letter (dated 17 September 2004) informing him that the First Defendant was the new landlord and asking him to pay his rent into a specified bank account. The letter was signed by Mr Karim as a director. Mr New complied with these instructions, paying his rent quarterly as required by his tenancy.
21. In fact, the site had been purchased by both the First and Second Defendants. The Second Defendant, however, appears to have acted purely as an investor in the site, leaving the day to day management to the representatives of the First Defendant, Mr Karim and Mr Patel. Nothing turns therefore on the fact that it was a purchase by both Defendants rather than the First Defendant alone.
22. Mr New's last visit to the site before the garages were pulled down was in February 2007 when he went to collect a small mould he wanted to work on in his studio. He saw nothing, and knew nothing, at that stage about the site being the subject of any proposed development or sale.
23. From 11 to 19 April 2007, Mr New was in Berlin visiting his daughter. Following his return, he picked up an answer-phone message on 20 April 2007 on his home telephone from his landlord asking him to ring a number urgently. He telephoned the number immediately and asked to speak to Mr Karim, which he thought he did (though Mr Patel says Mr New in fact spoke to him). Mr New was told that his tenancy was being terminated. He remonstrated to the effect that he was entitled to a month's notice under the terms of his tenancy. This was indeed the case: clause 14 of the agreement entitled either party to terminate "by giving at least one full months written notice ... to expire on the last day of any given quarter (refer to clause 1 for dates)". I observe from the dates given in clause 1 that, as of 20 April 2007, that meant that the earliest termination date would have been 20 June 2007. Mr New was told that the landlord had sent a letter terminating the tenancy. That was not true as no such letter had in fact been sent or (as Mr New pointed out at the time) received by him. Mr New was told that the property had been sold to a property developer but not that the garages were about to be pulled down. Mr New said he would need time to deal with matters; he had just returned from Berlin and would be busy at the Royal Academy Schools for most of the week; he would get back to them.
24. On 27 April 2007, Mr New rang again to inform Mr Karim that he would be unable to move the contents of the garage until the following Thursday. He in fact spoke to Mr Karim's "assistant", presumably Mr Patel, who told him to ring the builder working on the site, called Roger, and gave him his number. "Roger" was Mr Wade and, when Mr New rang him, Mr Wade told him that the garages had already been demolished. He suggested ringing Mr Kelly. Mr New did so but Mr Kelly told him brusquely that he had "washed his hands of the garages". Mr New went to the site the following day and found that all the garages, including his, had been razed to the ground. A handwritten notice on the gate read "All garages will go down 21^st April". There was no sign of his possessions. He visited the site again on 30 April 2007 and met "Sanjay" (presumably Mr Agarwal) who told him that a new company owned the site and, in answer to the question where he might find his moulds, that they were probably now under tons of concrete from the demolished garages.
25. Unknown to Mr New, what had happened was this. On 28 September 2007, planning permission had been granted for the demolition of the garages and the construction of 9 two-bedroom, two-storey houses, together with associated landscaping, refuse chamber and the provision of 9 car-parking spaces. The First and Second Defendants thereafter decided to sell the site and the First Defendant (through Mr Karim and Mr Patel) instructed Mr Pennell to act for them in negotiating a sale. Mr Pennell contacted those developers he knew who he thought might be interested and received a response from a Mr Mukhtar. His initial offer was made on 27 March 2007 and, after a brief negotiation, contracts were exchanged on 30 March 2007 for a sale to Mindcross at a price of £1,062,500. The contract set the completion date as 29 May 2007 or earlier by arrangement. By clause 4, the property was sold with vacant possession. Clause 10 of the contract provided that

"The Buyer will be allowed access to the vacant garages. The Seller will give immediate notice to quit the garages that are currently tenanted".

As noted above, the Seller (i.e. the First and Second Defendants) had not given Mr New notice to quit by the date of the contract and had no legal right at that point to achieve vacant possession, at least as regards Mr New's garage, on or before the projected completion date, even if Mr New had no rights under the 1954 Act and only had the contractual rights conferred by the tenancy. There is no reliable evidence from the First and Second Defendants as to how in those circumstances they proposed to terminate Mr New's tenancy in order to comply with their contractual obligation to Mindcross. Given the speed with which contracts were exchanged, it is likely that the point was either overlooked or thought not to be practically significant. By their answers to Mindcross's requisitions on title, dated 23 April 2007, the First and Second Defendants confirmed that they would give vacant possession on completion: by then, as I have explained above, Mr New had been in touch by telephone and explained his right to a month's notice under the contract. It is possible that Mr Karim and Mr Patel took the view from this conversation that they would be able to persuade Mr New to leave in time, particularly if neither they nor Mr New had yet recognised the need for the contractual notice to expire on a quarter day. But again, I have no reliable evidence as to what was their thinking in this respect.

26. Just before contracts were exchanged, Mr Pennell had received a request from Mr Mukhtar on behalf of Mindcross for access to the site between exchange and completion for the purpose of carrying out soil tests, involving a number of bore-holes around the site and also a measured site survey. Mr Pennell took instructions from either Mr Karim or Mr Patel (he does not recall which) and was told that access would be allowed, subject to the First Defendant establishing which garages were vacant and which were occupied. That information was passed on to Mr Mukhtar and to the solicitors involved and the upshot appears to have been clause 10 of the contract. It was necessary therefore for the First and Second Defendants to establish following exchange which garages were vacant and which were not. Mr Pennell was told that Mr Karim or Mr Patel would attend on site for that purpose and Mr Pennell would then be instructed to provide the relevant information to Mr Mukhtar.
27. For some unexplained reason, this inspection did not happen immediately but on Saturday 14 April 2007, Mr Karim and Mr Patel visited the site, together with a team of builders consisting of Mr Wade, his brothers Nigel and Chris and Mr Ward. Mr Karim brought with him a list of contact details for tenants of the garages. The list bears the date 30 July 2004 and was presumably therefore drawn up by Beavercroft Ltd and given to the First and Second Defendants when they purchased the site. By 14 April 2007, the information on the list would be likely to be out of date and there was no attempt to reconcile the information appearing on it with any current rent roll. (I am not satisfied from Mr Karim's evidence that the First Defendant in fact properly accounted for the rents it was receiving). Nevertheless, Mr Karim gave a copy of the list to Mr Wade and they went through it, garage by garage, attempting to contact each tenant by the telephone number stated. The general procedure was that Mr Wade's team would open each garage door to see if the garage was occupied, using keys to the locks integrated in the handle of the door and cropping padlocks where these had been installed to supplement the integrated locks. Where the garage was unoccupied, the door was left open to be removed later. Where the garage was occupied, the relevant tenant on the list would he contacted and asked if he claimed any interest in the garage; if he claimed no interest, the door was left open to be removed later; if he claimed an interest, the door would be closed again and painted (by Mr Wade) with a white cross to signify to Mr Wade's team that the door should not be removed. Where the garage was occupied but no contact could be made with the tenant, the door would be closed and painted with a white cross. The garage doors which had been left open through this procedure were then removed by Mr Wade's team during the course of the morning and stacked by the entrance to the site. By the end of the morning, the doors to all except about 10 garages had been removed.
28. It is not clear from the evidence whether Mr New's garage was actually opened on 14 April 2007. Mr Wade thought not because Mr Karim said he would deal with this garage. However, Mr New's name, address and telephone number (for a land line rather than a mobile telephone ) appear on the list and I infer that this was the occasion when Mr Karim left the telephone message which Mr New did not receive until 20 April 2007, after his return from Berlin. Mr New's garage was left intact and painted with a white cross.
29. Mr Ward was given the additional job on 14 April 2007 of painting the notice which Mr New saw later, stating that all the garages were to go down on 21 April. Those instructions must have been given or at least approved by Mr Karim and Mr Patel. The sign was tied by Mr Ward to the gate at the entrance to the site.
30. Mr Agarwal states in his witness statement that on 14 April he noted approximately 35 garage doors had been removed, which suggests he visited the site around this time. He also says that he saw the sign on the gate about the garages going down on 21 April, although he does not say when he first saw this. Be that as it may, on 16 April 2007 (the following Monday), Mr Agarwal, who by now had taken over from Mr Mukhtar the conduct of all negotiations regarding the site on behalf of Mindcross, sent a fax to Mr Pennell in the following terms:

"Further to our telephone conversation we understand that occupied garages are marked with a white cross. We further understand that notice has been given for these to be vacated by Saturday coming (21 April).

As such we have mobilised clearance and analysis teams for Monday morning 23 April.

Unless we have written notification contrary to the above all items left on site will be treated as unwanted. Please confirm receipt of this message."

Mr Pennell accepts in his witness statement that he passed on to Mr Agarwal information he had received from Mr Patel that the doors to vacant garages had been removed, so that access could be given for the proposed site investigation, but that some of the garages were still occupied and had been identified by a white cross. This seems to be the conversation referred to in the opening part of Mr Agarwal's fax. Mr Pennell does not recall being told that 21 April (or any other date) was the deadline for tenants to vacate but I think it likely that he was told this by Mr Karim or Mr Patel because, according to Mr Wade, it had been arranged on 14 April 2007 that his team was to return on 21 April to remove the doors of the remaining garages that were marked with white crosses. On that evidence, Mr Karim and Mr Patel were on 14 April expecting the garage to be vacated by 21 April 2007, which was also the final date given on the notice now hanging at the entrance to the site. I find it difficult to believe that Mr Agarwal would have written his fax in the terms he did unless he had received a clear message from Mr Pennell that his (Mr Pennelfs) clients expected to be able to have the site vacated by 21 April. However, I accept Mr Pennell's evidence that no guarantees were given as to vacating the garages on any particular day: this was purely a target date for that purpose.

31. Mr Pennell's telephone records for his office show that he rang the First Defendant's office or Mr Patel eight times on 16 April and once again on 17 April 2007. He also rang Mr Agarwal three times on 16 April and twice on 17 April 2007. None of these was a long call. It is not clear when Mr Agarwal's fax of 16 April was sent nor when, as Mr Pennell says and I accept, he forwarded it to his clients; it is therefore not clear which of these calls could be said to be in response to the fax. Mr Agarwal's recollection is that he agreed with Mr Pennell to speak to him on Monday 23 April before sending in his clearance and analysis teams on Tuesday 24 April 2007. I accept that evidence, which is consistent with both parties intending the site to be vacated by Saturday 21 April 2007. I also accept Mr Pennell's evidence that his instructions from Mr Patel, which he passed on to Mr Agarwal were to the effect that Mindcross was not being given unrestricted access and had no right to treat items on site as unwanted. It is a pity that Mr Pennell did not confirm this in writing given Mr Agarwal's request in his fax for written notification if matters were not to proceed as stated.
32. On Saturday 21 April 2007, Mr Wade's team (that is, Mr Wade himself, his two brothers and Mr Ward) attended the site again. This time Mr Karim joined them but not Mr Patel and Mr Karim left before Mr Wade's team had finished what they had to do. The circumstances were considerably less orderly than they had been the previous Saturday. Tenants had come, and were still coming that morning, to retrieve their possessions but had left what they did not want as rubbish on the site. There is also some evidence to suggest that looters and fly-tippers had broken into the site the previous week to pick over the contents of the garages or dump unwanted rubbish in the vacant garages. The evidence on these matters is rather too patchy and unreliable for me to be sure that such activities were either serious in themselves or relevant to the issues I have to decide. Equally, there is some evidence (notably from Mr Wade) that any confusion was increased because Mr Kelly had been renting out some of the garages for "tenants" of his own, unknown to the First and Second Defendants. Mr Kelly denied that he would do anything so dishonest but, in the absence of more detailed evidence, I can make no findings one way or the other on this issue.
33. Mr Wade's team were nevertheless able to continue their work of removing the remaining doors to the garages, as instructed by Mr Karim. By the time they left at about 1pm or 2pm, they had removed the doors to all the garages except one or two: Mr New's and perhaps another used by Mr Kelly, though Mr Kelly thought he had vacated his. Mr Wade's evidence is that the integrated lock in the door handle to Mr New's garage was "missing", though it is not clear how that could have happened. Mr Ward was less clear in cross-examination as to whether or not Mr New's garage door had a lock on it. However, they both recall opening the garage and looking briefly inside and it is clear at least from Mr Ward's evidence that the garage was full to the door. I infer that the contents had not been disturbed. Mr Wade's description of the contents as "looking like a lot of rubbish being dumped in the garage" reflects the fact that he could not have known from his brief inspection what Mr New's moulds in fact were; this accords with Mr Kelly's description of helping Mr New move items into the garage which "looked like nothing to me" and "didn't look like it had any value"; and Mr New confirmed in his own evidence that the fact that people do not know what they are gave him some comfort as to their security at the garage.
34. Mr Wade therefore closed up Mr New's garage and put a new padlock on the hasp. That was how he and his team left it. On his way out, Mr Wade also locked the gates with a new lock, without giving a key to Mr Kelly. Mr Wade then telephoned Mr Karim (who had already left the site) to tell him what he had done.
35. On Monday 23 April 2007, Mr Pennell and Mr Agarwal spoke again by telephone. From Mr Pennell's telephone records they appear to have spoken briefly twice during the morning. Mr Pennell does not appear to have telephoned his clients for any specific instructions that morning so I infer that they had already telephoned him to instruct him as to what had happened the previous Saturday. Mr Agarwal and Mr Pennell disagree about what was said during this call or these calls. Mr Agarwal says that Mr Pennell confirmed that the site was vacant and that Mr Pennell said to him that he could "Do what you have to do". Mr Pennell denies this. His recollection is that he re-confirmed to Mr Agarwal that access was to be given to vacant garages only, the occupied garages being those still identified (as before) with a white cross on the door. Mr Pennell also recalled that he specifically agreed with Mr Agarwal that Mindcross's site analysis team could make holes in the roofs of vacant garages where that was deemed necessary to enable bore-holes to be sunk. Mr Agarwal agreed in cross-examination that he had not been specifically authorised to demolish the garages or remove the roofs but only to remove parts of any roofs for this purpose. I prefer Mr Pennell's evidence on this issue to Mr Agarwal's. In my judgment, Mr Pennell would have been unlikely to have given carte blanche to Mr Agarwal to "do what he had to do" at the site; he was contemplating (as was Mr Agarwal at that stage) that the garages would remain standing for the time being, albeit subject to some potentially intrusive site investigation works. Given the facts that (i) Mr New had been in touch with Mr Pennell's clients on Friday 20 April and (ii) Mr Wade had reported to them what he had done on Saturday 21 April 2007, I think it more likely that Mr Pennell would have received instructions from Mr Karim or Mr Patel by 23 April that there were still garages with white crosses on the door which remained occupied and that these should not be touched. If he had not received any such instructions, then he would still have thought that there were occupied garages identified with a white cross from his instructions the previous week. Either way, therefore, he would not have given more extensive authority. I reject any suggestion that Mr Pennell would have acted beyond the terms of his instructions.
36. There does not seem to have been any further specific discussion on 23 April 2007 as to the clearance of the site and whether any items could be treated as unwanted. The position in that respect remained as it had been left the previous week.
37. Following his conversation with Mr Pennell, Mr Agarwal went to the site the same day to see what was happening. When he got there he says he found various people on the site going through what he assumed was rubbish from the garages. More significantly, he says that none of the garages was closed and locked, with a white cross on the door. All the garages were open. Mr Agarwal looked around the site to see if there was anything of value to be saved or secured. He says he met one "tenant", Mr Williams (not on Mr Karim's list), who was removing his motorcycles from one open garage and Mr Agarwal gave him his telephone number and expressed his concern about the security of his property. His impression otherwise was that the items left behind had been abandoned and were of no value. If they included the contents of Mr New's garage, Mr Agarwal clearly had no more conception of the value of Mr New's moulds and other possessions than had Mr Wade or Mr Kelly. There is some evidence, in the form of a witness statement in these proceedings of Mr Adrian Baggs, to the effect that the contents of Mr New's garage had been looked through and taken out of his garage by this stage but, since Mr Baggs did not appear at trial to be cross-examined on his statement and no explanation was offered for his absence I am unable to give this evidence any weight. I find, however, from the nature of Mr New's belongings, that they were unlikely to have attracted any attention from anyone looking to purloin items of value and that they therefore must have remained on site, even if Mr New's garage had been opened.
38. Furthermore, I cannot accept Mr Agarwal's account of what he found at the site on 23 April 2007. The alleged presence of Mr Williams and his motorcycles is inconsistent with the evidence of Mr Wade and Mr Ward (which broadly I have accepted) as to what they saw at the site on 21 April 2007. It also tends to contradict Mr Agarwal's own evidence that he was led to believe that the site was vacant. Mr Williams was not called as a witness though he appears to have been available (from a short statement made to Mr Agarwal, to which I cannot attach any weight). Perhaps more significantly, if the circumstances were as Mr Agarwal describes them, with no doors bearing white crosses, the natural course would have been for him to clarify with Mr Pennell what had happened to them: only that morning it had been re-confirmed to him that he could not touch the garages with white crosses. He appears to have done nothing of the kind. I think it likely that he simply decided to go ahead with what Mindcross needed to do without proper regard to the interests of others on the site, including Mr New.
39. The following day, Mr Agarwal visited the site again with his clearance and analysis teams. Their work proceeded quickly. First, any items (which he describes as rubbish and debris) lying in or around the garages were put into large skips and removed from the site to enable the site investigation teams to inspect. In my judgment, it must have been during that process that Mr New's goods were removed and lost. Secondly, some work was done to the roofs of some of the garages to enable bore-holes to be made within them. But that appears to have involved the removal of roofs and consequently was thought to create a problem for the stability of the garage walls. Mr Agarwal says that the "machine-operator" (whoever he was) advised that the garages be demolished. Mr Agarwal saw no difficulty in accepting and following this advice, given that the site had been cleared and was to be developed anyway, so, thirdly, the garages were demolished. That enabled the site investigation works to go ahead unhindered by the physical limitations created by the garages. Each of these three steps was beyond the authority established with Mr Pennell.

E. Legal issues

40. The legal issues which have been argued before me arise principally as between Mr New and the First and Second Defendants. The First and Second Defendants do not dispute that they will be liable for any loss arising from the demolition of Mr New's garage and destruction of the possessions if they authorised Mindcross to demolish the garage and clear the site. This liability would arise in tort (trespass and wrongful interference) and contract (breach of covenant for quiet enjoyment). For these purposes, I accept the submissions made in reply on Mr New's behalf that authority would include any ostensible authority arising from the fact that Mr Pennell had been interposed by the First and Second Defendants as the sole channel for all communications between them and Mindcross. These are, however, largely issues of fact.
41. Mr New contends in the alternative that, if the First and Second Defendants gave no such authority to Mindcross, they are nonetheless liable for loss under a separate principle arising where and because

(a) the First and Second Defendants retained possession and control of the site (other than, presumably. Mr New's garage);

(b) they had allowed Mindcross into occupation of the site; and

(c) they knew or ought to have been aware or foreseen from information reasonably available to them that by allowing Mindcross into occupation of the site there was a risk of damage to Mr New's garage or its contents from Mindcross¹ s activities.

This alleged principle is said to be illustrated by three separate lines of authority concerning (i) the liability of occupiers of land for the acts of nuisance of their licensees, whether committed on the land or emanating from the presence of the licensees on the land (ii) the liability of a landlord under the covenant for quiet enjoyment for acts of disturbance to his tenant's enjoyment of his premises arising from the landlord's failure to take steps to avert the risk of disturbance and (iii) the liability of a landowner for the acts of his independent contractor where those acts carry a risk of damage to adjoining owners.

42. In my judgment, none of the authorities cited to me is directly in point and none justifies a duty of the breadth formulated and contended for on Mr New's behalf. In modem statements of principle, liability of an owner or occupier of land in nuisance or negligence (the classification is now immaterial) depends upon more than the foreseeable risk of harm. Liability only arises where it is reasonable for it to be imposed. The concept of reasonableness requires or may require a careful examination of the circumstances (see Delaware Mansions Ltd v Westminster CC [2002] 1 AC 321 at paras 28-34 per Lord Cooke of Thorndon). On facts like those with which I am concerned, liability would thus depend on considerations such as (i) the extent to which the First and Second Defendants could reasonably have known or foreseen what Mindcross's investigative team was intending to do (ii) the First and Second Defendant's knowledge of the value of the goods kept by Mr New in his garage and (iii) in the light of that knowledge, the extent to which the First and Second Defendants could have ensured the safety of Mr New's possessions at reasonable cost. Considerations of this kind (and these are merely illustrations) have not been fully addressed in the evidence or by the argument before me and, if explored further, may well have excluded liability on this ground. On the evidence I have heard and facts I have found, for example, I do not know how it can be said that the access permitted to Mindcross by the First and Second Defendants could foreseeably have led to the demolition of the garages nor how the First and Second Defendants were expected to know of the value of the goods Mr New stored at his garage nor at what stage in the sequence of events it is suggested that the First and Second Defendants should have acted to stem the risk of harm. I accept that, as a matter of the parties' legal rights under the tenancy agreement, the First and Second Defendants were acting precipitately in seeking to obtain vacant possession of Mr New's garage but that does not necessarily trump all other factors in the assessment of whether liability arises in nuisance or negligence.
43. In relation to his claim for demolition of (and thus wrongful eviction from) the garage, Mr New takes two further points of law. The first is that the First and Second Defendants are liable for Mindcross's actions because they amounted to a breach of a non-delegable duty: see Sampson v. Wilson (1994) 26 HLR 486. I reject this submission. The non-delegable duty found to have arisen in Sampson v Wilson was under section 27 of the Housing Act 1988 imposing liability on a landlord where he or anyone on his behalf unlawfully deprives a residential occupier of his occupation of the whole or part of the premises. No comparable non-delegable duty can be asserted here. The other point is that the First and Second Defendants are liable for having adopted or ratified Mindcross's trespass by (in summary) completing the sale to and purchase by Mindcross without restoring Mr New to his rights. I reject this submission too. When Mindcross levelled Mr New's garage, an issue arose as to whether Mr New had the right to insist on its reinstatement or whether he should be left to his remedy in damages. The First and Second Defendants did nothing more than assert that Mr New's remedy (if any) lay in damages and that they were not themselves liable for what had happened. That does not amount to adoption or ratification of any unlawful acts undertaken by Mindcross.

F. Conclusions

44. On the facts I have found and having regard to the law as I have held it to be, I would answer the issues posed at para 6 above, as follows:

(a) Mindcross is liable in trespass for demolishing Mr New's garage;

(b) Mindcross is liable in trespass and wrongful interference with goods for clearing Mr New's goods from the site;

(c) the First and Second Defendants did not authorise Mindcross either to demolish Mr New's garage or to clear his goods from the site and are not therefore liable to Mr New on that ground;

(d) Mr Pennell did not give any authority to Mindcross in breach of his duty to the First and Second Defendants;

(e) the First and Second Defendants are not liable to Mr New on any of the alternative grounds suggested;

(f) no claims for contribution or indemnity fall to be determined as between the First and Second Defendants and Mindcross.

45. It follows that I would dismiss Mr New's claim against the First and Second Defendants, the First and Second Defendants' claim against Mr Pennelf and the respective claims for contribution and indemnity between the First and Second Defendants and Mindcross. There will need to be an inquiry as to damages as between Mr New and Mindcross. I make it clear that I do not decide any issues as to aggravated or exemplary damages which have been canvassed in the parties' closing submissions: those issues were not part of the issues initially before me and were raised rather too late to be conveniently added to them. I will hear submissions on costs and any other consequential matters when this judgement is formally handed down.