England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
High Court Sitting in the Royal Courts of Justice.
Strand, London, WC2A 2LL
On appeal from Wandsworth County County
Orders of (1) District Judge Gittens dated 4 January 2010
And (2) His Honour Judge Behar dated 10 September 2010

		26/07/2013

Mr Justice Griffith Williams :

Introduction

1. This is an appeal by Adrian Lasrado ("the Appellant") against the order dated 10 September 2010 of His Honour Judge Behar sitting at Wandsworth County Court, giving judgment for Donna Lee ("the Respondent") for £24,600. In those proceedings, the respondent was the claimant and appellant was the defendant. The other terms of the order were that the appellant pay the respondent's costs subject to detailed assessment if not agreed, that there be detailed assessment of the respondent's publically funded costs, that the warrant for the committal of the appellant dated 16 July 2009 be set aside and that his application for permission to appeal be refused. By order dated 8 February 2013 Gloster J gave permission to appeal out of time and ordered the appellant to lodge the grounds of appeal. In paragraph of her judgment, Gloster J said:

"… I am concerned as to whether the Applicant in substance also needs to seek permission to appeal and/or appeal the order of District Judge Gittens dated 4 January 2010, in which he refused to set aside the default judgment on liability as against the applicant."

2. The appellant has served grounds of appeal against both orders and in the circumstances I have concluded it is appropriate to grant him the necessary extension of time and permission to appeal against the order of District Judge Gittens.

Background

3. 34 Engadine Street, London SW18 is a house in multiple occupation, consisting of 6 bedsits with shared facilities. There is an issue (see below) as to whether the appellant or his wife were the landlords of that property. On a date in the summer of 2008, the respondent was given a tenancy. In her witness statements dated 23 June and 16 July 2009 and 10 September 2010, she made a number of allegations of harassment against the appellant and alleged that when she returned to the property on 20 June 2009, the locks had been changed and there was a notice stating she had been evicted.
4. The respondent issued proceedings and applied for an injunction to be re-admitted to the property and claimed damages. On 23 June 2009, she was granted an injunction without notice ordering the appellant to re-admit her to her room and to the common parts of the property. The injunction was served personally on the appellant the following day. On 9 July 2009, the return date, the court ordered the appellant to re-admit the respondent to her room and to the common parts of the property and to arrange for her possessions which had been removed from her room to be returned thereto forthwith. The order was personally served on the appellant later that day.
5. On 16 July 2009, on the respondent's application, there was a committal order, committing the appellant to prison for 18 months for his non-compliance with the orders of 23 June and 9 July. For reasons which are not material, bailiffs did not execute that order.
6. On 13 October 2009, Deputy District Judge Ostroff ordered that there be judgment for the respondent in respect of her claim for damages for an amount to be determined by the court.
7. On 4 January 2010, District Judge Gittens heard the appellant's application to set aside the orders of 23 June and 9 July 2009 and the judgment of 13 October 2009. He dismissed all 3 applications. At a separate hearing before Her Honour Judge Redgrave on the same date, the appellant's application to set aside the committal order of 16 July 2009 was refused. There was no application to appeal.
8. On 10 January 2010, following a hearing before His Honour Judge Behar the learned judge made the order now appealed against (see paragraph 1 above). By a Notice filed on 14 August 2012, the appellant applied for permission to appeal the order but restricted the appeal to the judgment for the claimant for £24,600; surprisingly, to the setting aside of the warrant for committal and to the refusal of his application for permission to appeal.
9. In the meantime, the respondent applied on 24 August 2011 for a charging order which was made on 19 March 2012 in the sum of £32,666.27. The appellant applied on 28 March 2012 for the discharge of that charging order. That application was dismissed on 27 July 2012. It is unlikely to be a co-incidence that it was following the dismissal of that application that the appellant, on 14 August 2012 served notice of appeal (see paragraph 8 above) and applied for permission to appeal out of time.

Grounds of appeal

10. The appellant asserted that the claim for the mandatory injunction should not have been made against him because he was not the landlord of the property but merely the agent for his wife who is the registered owner of the property. Reliance was placed upon the definition of "landlord" in section 27(9) of the Housing Act 1988 as "the person who, but for the occupiers right to occupy, would be entitled to occupation of the premises". It was asserted that any claims for damages should have been made against his wife as the landlord. The other ground of appeal is that the hearing on 10 September 2010 was conducted by His Honour Judge Behar in an unfair manner because the appellant was given no opportunity to present his defence to the claim for damages and, in particular, a defence pursuant to section 27(8)(a) of the 1988 Act which provides that it shall be a defence for the landlord to prove he believed and had reasonable cause to believe that the residential occupier had ceased to reside in the premises. In his Statement in support of his appeal, the appellant stated he was overwhelmed by the attitude of the judge. He made a number of complaints:

i) He had had insufficient time to address the respondent's case because her witness statement had been served in the day before the hearing;

ii) His own statement in reply had been hurried and so did not include his defence that he was not the landlord and his reliance upon the conduct of the complainant in mitigation of damage: see section 27(7)(a) of the 1988 Act.

iii) The respondent's statement contained no particulars of her claims for damages;

iv) When his assistant, Mrs Florence Cudd telephoned the court the day before the hearing she was told by the court that he would not be required to speak and that there was no need for him to bring his witnesses to court because only his written evidence would be considered.^[1]

The case for the Respondent

11. On behalf of the respondent it was submitted that the issue of the identity of the landlord was raised only after the appellant applied for permission to appeal and that at no time throughout the proceedings has he at any time sought to contest his role as the landlord or the manager of the property. Of the criticisms of the damages hearing, it is submitted that while there was late service of the respondent's third statement, almost all her evidence relevant to the issue of damages was contained in her statements of 23 June and 16 July 2009 previously served on the appellant. Even so, it was accepted the respondent provided particulars in her statement of 10 September 2010 of (a) her homelessness between her eviction and the date in September 2009 when she was provided with hostel accommodation by the local authority and (b) of items of her property and their values which she has lost as a result of her eviction.
12. It was submitted that the purported defence pursuant to section 27 (7)(a) of the Act is relevant to issues of liability and so would have had no relevance in a damages hearing. The evidence of the respondent's conduct (see below) even if reliable, would not constitute conduct sufficient to mitigate damages. The evidence in the affidavit dated 15 May 2012 of Mrs Cudd of the advice allegedly given to her [see paragraph 10 (iv)] above was mentioned for the first time in a letter dated 2 January 2013 to the High Court. It is submitted that the appellant's case discloses no serious irregularity of the sort which would justify the overturning of a decision made nearly 3 years ago and only recently the subject of an application for permission to appeal.

The "Landlord" defence

13. As this issue was not raised in any of the various proceedings in the County Court, it is necessary to consider the evidence. The appellant asserts his wife is the registered owner of the property and so is the landlord. Even so he admits that he was acting on behalf of the landlord and he has at no time asserted that he was not responsible for the management of the property. It follows that if his wife was the landlord she would be liable for his conduct in depriving the respondent of her occupation of the bed-sit accommodation: see section 27(3) of the 1988 Act.
14. The appellant has adduced no evidence to prove his wife is the registered owner of the property. This is particularly concerning because the evidence proves overwhelmingly that he is the landlord. In letters to the respondent dated 16 May and 19 June 2009, the appellant describes himself as "landlord". In his response to the respondent's allegations, he refers to "the usual practice with landlords" and in one response he stated "I do not take deposits from my (emphasis added) bed-sit tenants". There is also his statement of 9 September 2010 prepared for the damages hearing in which he addressed the unsigned statement of the respondent served that day in which he dealt with every single one of her allegations and yet made no mention of his claim that he was not the landlord. Importantly, he made no such claim in the proceedings in respect of the charging order.
15. I am not persuaded the evidence supports this defence, arising as it did at the eleventh hour.

The Damages claim

16. Unfortunately there was no recording made of the proceedings on 10 December 2010 when the sole issue was the respondent's claim for damages and when the appellant appeared in person and the respondent (the claimant in those proceedings) was represented by Mr Sadiq of counsel. His Attendance Note records that the award of damages of £24,600 was made up as follows:

a) General damages of £16,800 being compensation at a daily rate of £200 for the 84 days between the appellant's eviction and her obtaining alternative accommodation in a hostel;

b) The repayment of her deposit of £400;

c) Compensation of £1,200 pursuant to section 214 of the Housing Act 2004 for the appellant's failure to hold the deposit in an authorised manner;

d) General damages of £1,000 for the harassment of the respondent during her tenancy;

e) Special damages of £2,200 for items of her property which were not returned to her;

f) Aggravated damages of £1,500;

g) Exemplory damages of £1,500.

17. The Attendance Note recorded that the learned judge heard evidence from both the respondent and the appellant as to quantum, that the respondent was "quite angry" when giving her evidence, especially when cross-examined by the appellant who was himself "both quite angry and very rude to the judge".
18. The Attendance Note recorded that the learned judge was very critical of the respondent's failure to supply her witness statement until the morning of the trial^[2] and the learned judge accepted that the statement repeated matters in the respondent's earlier witness statements of 23 June and 16 July 2009, and that the only fresh matters raised were further details of the events on the day of her eviction and of the assault upon her 10 days later when she returned to the property in an attempt to recover her possessions, of her alternative accommodation arrangements until she obtained a hostel place and details of the values of her missing property.
19. The Attendance Note recorded the appellant had suggested he wanted an adjournment but the learned judge was persuaded to refuse one given the delay in bringing the claim to a hearing, much of that attributable to the appellant. The note recorded "in giving judgment, the judge stated that he found Miss Lee to be truthful (albeit intemperate) and he did not accept the evidence of Mr Lasrado".
20. The appellant has provided his comments about the Attendance Note in writing. In general terms, he does not accept that it is a record of the hearing as he remembers it. He states he thought the hearing was about the warrant for committal and so was "really surprised" when the judge started talking about money". That cannot be right, if only because the appellant responded to the respondent's unsigned witness statement with a statement of his own in which he addressed her claims for damages. Further the proceedings had been served on him personally on 24 June 2009 and the particulars of claim and the respondent's witness statement dated 23 June 2009 detailed her then claim for damages.
21. The appellant asserted the judge did not hear evidence as to quantum from the respondent and the appellant. Again that cannot be right. Not only were there the 3 witness statements of the respondent but there were the respondent's responses to each statement, dated 23 June 2009, 16 July 2009 and 10 September respectively. Furthermore the appellant accepted in the course of his submissions that questions about her damages were asked of him. I observe that much of his comment about the content of the attendance note was that he cannot remember and so there was little or no direct challenge to its accuracy.
22. My conclusion is there is nothing in the contents of the Attendance Note which suggests it is not a substantially reliable record of the proceedings. As such it is, of course, not evidence.
23. CPR52.11 provides that every appeal will be limited to a review of the decision of the lower court, unless the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing. It provides further that unless it orders otherwise, the appeal court will not receive evidence which was not before the lower court.
24. I am not persuaded the evidence of Mrs Cudd provides any support for the appellant's contentions. He is no stranger to the courts and it is frankly not credible that he would not have tried to appeal the learned judge's adverse findings if, as Mrs Cudd asserts, he had been told that there was no need for his witnesses to attend. The fact is that her evidence emerged on 15 May 2012, some 20 months after the hearing and one month after the appellant applied for permission to appeal, an application which was itself some 18 month's out of time. I have concluded that the evidence of Mrs Cudd should not be received.
25. It may well be that the appellant asked for an adjournment but the learned judge would have considered the merits of that application with the overriding objective very much in mind and with regard to the history of the appellant's non-compliance with court orders^[3] as well as to the detail of the additional matters. As the appellant's response to those additional matters was broadly to accuse the respondent of lying, an adjournment would have served no purpose.

Quantum

26. While I have been assisted by the researches as to awards in comparable cases provided by the appellant, I am not satisfied that the awards of general damages, the compensation under section 214 of the 2004 Act, the damages for harassment, the aggravated and exemplary damages were out with the appropriate ranges. The award of special damages was clearly based on the learned judge's acceptance of the respondent's credible evidence.
27. As to the appellant's submission that he was not provided the opportunity to present his defence under section 27 (8) (a) of the 1988 Act, (see paragraph 10 above) that would have been a defence on liability and so would have been irrelevant to issues of quantum. The submission that he was prevented from advancing a claim pursuant to section 27(7)(a) of the Act, that the respondent's conduct was such that it was reasonable to mitigate the damages for which he, the appellant, would otherwise be liable, does not withstand scrutiny. In Regalgrand Limited v. Dickerson & Wade [1996] 74E & CR312 @ 317, Aldous LJ said:

"The word "conduct" should be given its ordinary meaning… The subsection provides for reduction in damages provided the conduct of the tenant is such that the court concludes that it is reasonable to mitigate the damages, which I understand to mean reduce or cut down. If the court arrives at the conclusion that it is reasonable, it has to exercise the discretion given and decide whether the damages should be reduced. In some circumstances it may decide that, despite the conduct of the tenant, the damages should not be reduced and in others it should be reduced. The conclusion would depend upon all the circumstances of the case and will entail looking at the conduct in the light of the surrounding facts. If the court decides that the damages should be reduced, then it has to go on and decide what is the appropriate amount of the reduction. That is a judicial judgment which is not capable of mathematical precision. It again has to be taken in the light of all the facts."

28. I accept Miss Stroud's submission that the alleged conduct on the part of the respondent would not constitute conduct sufficient to mitigate damages. In any event, the appellant made these allegations in his witness statement of 17 June 2013, allegations which the learned judge did not believe.
29. CPR52.11(3) provides that the appeal court will allow an appeal where the decision of the lower court was wrong or unjust because of a serious irregularity in the proceedings in the lower court. In Hayes & Others v. Transco PLC [2003] EWCA Civ.1261, Clarke LJ, after setting out the provisions of the rule, said:-

"It follows that the question… is whether the decision of the judge was unjust because of a serious procedural or other irregularity in the proceedings. It is not, however, sufficient that a serious irregularity should be shown or even that some collateral injustice should be established. The decision must be unjust. As I see it, whether the decision is unjust or not would depend upon all the circumstances of the case."

30. I am not persuaded that the decision of the learned judge was in any way unjust and the appeals are accordingly dismissed.

Note 1   The appellant relies upon a document which purports to be an affidavit dated 15 May 2012 from Florence Cudd to that effect.    [Back]

Note 2   It is agreed that an unsigned copy of that witness statement had been served on The appellant on 9 September 2010.     [Back]

Note 3   See paragraphs 4 and 5 above    [Back]