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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 February 2016

HH Judge Richard Parkes QC :

Introduction

1. This is an appeal by the claimant from a decision by Master Leslie dated 20 May 2015, by which the claim was struck out and summary judgment was ordered. Permission to appeal was given by Andrews J on 31 July 2015.
2. The claimant, represented by Mr Howard Stevens QC and Mr Andrew Young, is the widow and executrix of Paul Dodd. She brings claims on her own behalf under the Fatal Accidents Act 1976, and on behalf of her late husband's estate under the Law Reform (Miscellaneous Provisions) Act 1934. The claims arise out of Paul Dodd's death in tragic circumstances on Christmas Day 2007. He and his wife, both Australians, were on their honeymoon. At the time, they were the guests of the sixth defendant (D6), who was then the leasehold owner of flat 2, 194-196 Kensington Park Road, Notting Hill. While leaving the flat to go out, Paul Dodd fell down the stairs from the first floor, suffered a major brain injury, and died two years later. It is alleged that defects in the staircase, and above all the lack of a handrail, were responsible for his fall, and that the freehold owner of the whole of 194-196 Kensington Park Road and head lessor of (at least) the first and second floors, is answerable for those defects.

Factual Background

3. The first defendant (D1) was until 2005 the freehold owner of 194-196 Kensington Park Road (together, 'the building'; separately, '194 KPR' and '196 KPR'). The building is a three storey Victorian structure, with basement. The ground floor and basement are now retail premises and the first and second floors contain residential flats. D1's freehold interest in the building was assigned to the second and third defendants (D2 and D3) on 14 March 2007. D1, D2 and D3 are represented by Mr Colm Nugent. No point is taken on any distinction between the three defendants, so for present purposes they can be treated as being one and the same, and will be referred to collectively as 'Raebarn'. According to the evidence of Matthew Burfield, Raebarn's solicitor, Raebarn is a commercial landlord, which neither develops residential properties nor has residential tenants.
4. On 18 December 1987 Raebarn granted a headlease for 125 years of the upper floors of the building to the fourth defendant (D4), a developer, which intended to create or update residential flats. There is an important issue as to exactly which parts of the building were demised by that headlease.
5. The headlease, dated 18 December 1987, was made between Raebarn and D4. Clause 2 of the lease provided that Raebarn demised to D4 for a term of 125 years all the premises more particularly described in the First Schedule, together with the rights mentioned in the Second Schedule, but reserving to Raebarn the rights mentioned in the Third Schedule.
6. By the First Schedule, the premises were defined as 'All that property known as the Upper Parts 194/196 Kensington Park Road London W11 which are shown edged red on the plans numbered 2 and 3 annexed hereto', to include all the various features elaborated at clauses (i) to (ix). In particular, by clause (viii), the demise included 'the structure of the Building above first floor joist level including the said joists at first floor level and in particular the exterior walls main timbers joists walls and boundary fences walls and structures of the Building', but it was provided that it should not include '(i) Any part or parts of the Building (other than any conduits expressly included in this demise) lying below the said joists at first floor level'.
7. The parts shown edged red on the annexed plans clearly include the staircases from ground to first floor, and entrance halls, of both 194 and 196.
8. The difficulty with the headlease is therefore plain. On the one hand, the demise includes the staircase and ground floor common parts; on the other, it is stated not to include any parts of the building below the level of the first floor joists. On the face of it, there is or may be a conflict between the wording of the demise and the plan, or rather between two aspects of the wording of the demise. One of the issues to be decided is how that conflict can be resolved, and whether it can be resolved at all on a summary basis.
9. Among other provisions of the headlease were the following:

By clause 3(3), D4 was bound to keep the premises in good and substantial repair, order, condition and decoration, including the remedying of any inherent defect to the premises as and where necessary in order to keep the premises in that condition;

By clause 3(7), Raebarn had the right to enter on the premises and repair or reinstate them at D4's expense if D4 defaulted in the performance of any covenant relating to repair, reinstatement or decoration of the premises;

By clause 3(9), D4 was bound not to alter any of the structure, floors, ceilings, windows, partitions or principal or main walls without the prior written consent of Raebarn (not to be unreasonably withheld).

10. It is clear that on 17 March 1988 D4 sought (and on 11 May 1988 obtained) planning permission to convert the first and second floors of the building into self-contained flats. It is not in dispute that Raebarn gave its written consent to those alterations.
11. The drawings submitted with the application specified a new staircase between the ground and first floor of 196 KPR, with the same specification as the staircase from first to second floor, which featured specified tread and riser measurements and a handrail. This, according to the claimant's solicitor, Ms Edwards, made it clear that the staircase which (as she would have it) 'caused the accident' was not the original, but a replacement which was installed in around 1988, when the conversion of the first and second floors was carried out. That appears to be correct.
12. It is the claimant's case or proposed case (in the draft amended Particulars of Claim) that the staircase as built both breached the terms of planning permission and offended against Building Regulations, principally by omission of the handrail and by the installation of treads which were shorter, and risers that were higher, than they should have been.
13. There seems to be force in that case. It seems that the treads and risers did not accord with the plans, and if (as appears to be the case) no handrail was installed, that would have been a breach of planning permission and of the Building Regulations. A report by Mr McCartney for the claimant dated 27 October 2014, with addendum of 22 March 2015, shows that the lack of a handrail between ground and first floor would probably have been a breach of the basis on which planning permission was granted (the drawings having shown a handrail) and of Building Regulations, which would have required one. There were further breaches (either of Building Regulations or planning consent) in the height and depth of the treads. It may have been also that the timing of the lighting of the common parts was inadequate or unsafe. Mr Kevin Woudman, Raebarn's expert, agreed in his report dated 6 October 2014 that Building Regulations required a handrail, that the plans submitted with the application for planning consent showed one, and that the absence of a handrail made the staircase potentially dangerous. Indeed, the local authority should not have signed off the development if there was no handrail. It was unclear to him whether the risers and treads would have been in breach of Building Regulations, because although they differed from the requirements of the Regulations, the Building Control Officer had a discretion to accept minor variations.
14. Certainly, there was no handrail at the time of Mr Dodd's fall, and there had not been one between 1995 and April 1997, as the witness statement of Francis Nouyou makes clear. There is no evidence (and it does not appear to be the claimant's primary pleaded case) that the handrail was originally installed as part of the rebuilding in 1988 but then removed at some point before 1995. It seems improbable that the steps and risers were altered at some stage after the rebuilding, because that would have involved substantial work, so it is likely that the issue of the handrail was also a non-compliance dating from 1988. Indeed, absent any evidence of later removal, the natural inference must be that it was omitted during the rebuilding work.
15. It is significant that there was a surrender back by D4 to Raebarn dated 8 July 1988 of the ground floor access of 194 KPR, including the staircase to the first floor, for the sum of £18,000. The staircase in 194 KPR was taken out, with the result that the only access to the flats on the first and second floors of the building was by the staircase in 196 KPR.
16. Between 1988 and 1991 D4 granted underleases of flats 1 and 2 on the first floor of the building and flats 3 and 4 on the second floor.
17. On 5 December 2005 the headlease was assigned by D4 to the fifth defendant (D5), which was registered as the headlessee of the building. D5 was the management company of the building, and the underlessees from time to time of the four flats were its members.
18. The sixth defendant (D6) became underlessee of flat 2 at some point before November 2007. The underlease of flat 2 granted to a predecessor in title of D6, dated 12 January 1989, shows that the demised premises were expressed to exclude anything below the floor of the flat or above its ceiling, but that D4 granted (or purported to grant) the underlessee the right to use the common parts (including the staircase) for access and egress. It also describes the estate of which D4 was the leasehold owner as being the upper parts of 194/196 Kensington Park Road and 'the access thereto demised by the headlease'.
19. Neither D4 (which seems to have been dissolved some years ago in Jersey), nor D5 nor D6 played any part either in the applications before Master Leslie or in the appeal to this court.

The Nature of the Claim and Appeal

20. The claim against Raebarn focuses on the condition of the ground to first floor staircase of 196 KPR ('the staircase'). The claim is pleaded in negligence at common law, in failure to discharge a common law duty of care as occupier to Mr Dodd as a visitor under s2, Occupiers' Liability Act 1957 ('OLA'), and in failure to take reasonable care under s4, Defective Premises Act 1972 ('DPA') to see that those likely to be affected by the condition of the staircase were reasonably safe in using it. The pleaded claim that Raebarn was in breach of a duty of care as designer or builder of the staircase was not pursued on the appeal, because the evidence did not support the contention that Raebarn were designers or builders.
21. Raebarn applied by application notice dated 6 October 2014 for an order that the claim be struck out pursuant to CPR 3.4(2)(a), on the ground that the Particulars of Claim disclosed no reasonable cause of action, and for summary judgment pursuant to CPR 24.2. The court will only give summary judgment against a claimant if there is no real prospect of success on the claim: to defeat an application, the claimant must show some chance of success, which is real and not merely fanciful (although that should not obscure the fact that the burden of proof remains on the applicant to show grounds to believe that there is no real prospect of success). In the words of Lord Hobhouse in Three Rivers DC v Bank of England (No.3) [2003] AC 1, the criterion to be applied 'is not one of probability: it is absence of reality'.
22. The application was heard by Master Leslie on 29 April 2015. He granted it, striking out the claim and ordering summary judgment. He concluded that the parties had conducted themselves in a way consistent only with one interpretation of the headlease, namely that the staircase and ground floor access had been demised by Raebarn to D4 (as the plan, but not the text, of the headlease suggested), that this was one of the rare cases in which the parties had plainly made a mistake in their written agreement and that it was proper to apply the principle of 'corrective interpretation', or 'rectification by construction', so as to give effect to their obvious intention, namely that some means of access to the upper floors was to be demised. That being so, he concluded that Raebarn had no rights over the passage and staircase other than those granted by the headlease and no control over the new staircase, so could not have had a duty of care in respect of it. Raebarn had a right of entry if D4 or D5 had failed in its repairing obligations, but the staircase was in good repair; and there was no obligation on a landlord under the Defective Premises Act to carry out inspections, although it might have been different had some defect which made the premises dangerous been brought to their attention.
23. The Master refused leave to amend the Particulars of Claim, including a proposed paragraph 20A, which was set out only in Mr Young's skeleton argument. He determined that permission should be given if Raeburn failed in its application for judgment, but should be refused if it succeeded. However, he did not hear argument on the question of leave to amend. It is clear that the parties sensibly decided to argue the substantive application on the basis of the pleadings including the proposed amendments, but that no concessions were made by Mr Nugent as to the propriety of the proposed amendments. Because of shortage of time, I decided to adopt the same approach, so that at least the substantive appeal could be heard in the time available; and to hear the application for leave to amend, if it remains necessary, when judgment is handed down.
24. The proposed paragraph 20A, which appeared only in the claimant's skeleton argument before the Master, sought to plug a gap in the claimant's case under s4(2) Defective Premises Act 1972, which requires either that the landlord knows or that he ought in all the circumstances to have known of the relevant defect. By paragraph 20A, the claimant seeks to allege that Raebarn knew or should have known about the allegedly defective state of the staircase by visiting the building, either personally or through their managing agents, by inspecting the planning documents and/or by complying with their duty in relation to Building Regulations under the Building Act 1984 and under s4, Defective Premises Act, and generally to ensure that the staircase was built and maintained in accordance with planning consent and the Building Regulations.
25. By her grounds of appeal, the claimant contends that (inter alia) the Master should have held that the construction of the headlease was an important question of mixed law and fact that required a trial and was unsuitable for summary determination; he failed to understand that the effect of s4(4) DPA was that the landlord's right to enter to repair caused him to be treated as if under an obligation to repair, thus giving rise to a duty to all persons who might reasonably be expected to be affected by defects in the state of the premises; he wrongly concluded that there was binding authority to the effect that the absence of a handrail could not amount to a defect for the purposes of the DPA, and that Raebarn owed no duty under s4(4) DPA to inspect or repair unless a relevant defect was brought to its attention; the issue of the duty owed under s4(4) in respect of relevant defects was wholly unsuitable for summary determination; he was wrong to dismiss the claim that Raebarn owed a common law duty of care in negligence on the facts of the case, when there was authority that such a duty could be owed to visitors; and he was wrong to decide that any of the issues raised by the application was suitable for summary determination.

The claim under the Occupiers' Liability Act 1957 (OLA)

26. The OLA claim depends on the proposition that Raebarn was an occupier of the building. That is founded on the contention that the staircase was retained by Raebarn as part of the common parts. Raebarn say that they were not occupiers, because they demised the staircase to D4. As already mentioned, this question depends on the construction of the headlease. How far is that a question that can be resolved on a summary basis, and if it can be, what is the answer to it?
27. The description of the property in a lease may be verbal or by reference to a plan, or, more commonly, both.

"Very often a conveyance both describes the property verbally and also includes a plan. In that case it is advisable to provide that one or other shall prevail in case of inconsistency. For example, if the plan is expressed to be included 'for the purposes of facilitating identification only', the verbal description will prevail. However, if the property is said to be 'more particularly described in the plan', then the plan will prevail." (Megarry & Wade, The Law of Real Property, para 8-045).

28. In the present case, there is no provision that the plan should prevail over the wording of the headlease. I repeat for convenience the verbal description of the premises demised, namely 'All that property known as the Upper Parts 194/196 Kensington Park Road London W11 which are shown red on the Plans numbered 2 and 3 annexed hereto' (which admittedly includes the staircases and common parts). That description is then qualified to explain what is and is not included in the property shown red on the plans: among that which is included is 'the structure of the Building above first floor level including the said joists at first floor level and in particular the exterior walls main timbers joists walls and boundary fences walls and structures of the Building', while the parts shown red on the plans are stated not to include 'any part or parts of the Building … lying below the said joists at first floor level'.
29. The Master dealt with the apparent conflict by concluding that the parties to the headlease made a mistake in their written agreement, and that it was proper to apply the principle of 'corrective interpretation', or 'rectification by construction', so as to give effect to their obvious intention, namely that some means of access to the upper floors was to be demised.
30. For the limitations of that principle I was referred by Mr Stevens QC to the case of Network Rail Infrastructure Ltd v Fremont Ltd (Nicholas Strauss QC, 20 June 2013), in which there was a dispute as to whether a plan prevailed over a verbal description. I was referred to the passages set out below, in which the deputy judge gave this guidance on construction:

[29] Approaching the construction process as one would in any other case, the starting point must always be the language of the contract: see Re Sigma Finance Corp [2009] BCC 393 per Neuberger L.J. If the language (in a case such as this taken together with the plan) is clear, it cannot be departed from, even if the result does not seem to be a reasonable one: see for example Multi-Link Leisure Developments Ltd v North Lanarkshire Council [2011] 1 All ER 175 per Lord Hope; A-G of Belize v Belize Telecom Ltd [2009] 1 WLR 1988 at para. 16. This is subject to the fifth Investors Compensation Scheme principle, in the very rare cases in which the court is both convinced that the parties have made a mistake in the written agreement and able to see what the parties really intended. In such a case, but only in such a case, the court can apply "corrective interpretation" or "rectification by construction", without the need for what Arden L.J. in Cherry Tree at [25] called a "full blown" claim for rectification, supported by otherwise inadmissible evidence of the contractual negotiations. If however the language is capable of more than one interpretation, the court may prefer the more realistic or commercial one, even if less consistent with the language: see Rainy Sky SA v Kookmin Bank [2012] 1 All ER (Comm) 1 at [25], [29]-[30], [43].

…..

[51] There is no explicit discussion in the authorities of the standard of proof required to justify corrective interpretation, but it seems implicit in the formulation of the principle ("clear that something has gone wrong with the language", an intention "which the parties could not have had" and "clear mistake") that the usual standard of proof is inapplicable. It would not be enough for the court to conclude that it was more likely than not that there was a mistake; there could be no justification for acting on such a conclusion, while excluding, as required by the decision in Chartbrook, the evidence of the negotiations which would prove whether or not it was right. Unless the court is sure, without having considered the negotiations, that there must have been a mistake, corrective interpretation is inappropriate, and a rectification claim must be brought if the evidence justifies it.

31. In Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, the House of Lords considered the proper approach to the construction of contractual documents. At p912 Lord Hoffmann explained that approach and stated five principles which apply to the process of construction:

"… I think I should preface my explanation of my reasons with some general remarks about the principles by which contractual documents are nowadays construed. I do not think that the fundamental change which has overtaken this branch of the law, particularly as a result of the speeches of Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1384-1386 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, is always sufficiently appreciated. The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of "legal" interpretation has been discarded. The principles may be summarised as follows.

(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the "matrix of fact," but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax: see Mannai Investments Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749.

(5) The "rule" that words should be given their "natural and ordinary meaning" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191, 201:

"If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.""

32. I have no difficulty in accepting that the Master's approach to this question was correct. It is thoroughly implausible that commercial entities such as Raebarn and D4 would have entered into a lease for the demise of the upper floors of the building without providing for access for the intended residential occupants. Of course, a right of access can be implied as a matter of necessity. But why would D4 be content with that? As a matter of basic commercial sense, it would have wanted the certainty of access, and (if the claimant is right) no right of access was otherwise provided for in the lease. Moreover, as long as the entrance halls and staircases did no more than lead to the upper (residential) floors, they can have had no use for Raebarn, and there would have been no point in Raebarn retaining them. In my judgment, the meaning which the headlease would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, namely that D4 wanted the upper floors for conversion to residential flats, while Raebarn wanted the ground floor and basement for retail purposes, can only be that the means of access to the upper floors, including the entrance hall and ground to first floor staircase of 196 KPW, was part of the demise to D4. Any other conclusion would, in Lord Hoffmann's words, flout business commonsense.
33. In other words, the purported exclusion from the demise (if that was its effect) of any parts of the building below the level of the first floor joists was plainly a clumsy error in the drafting of the headlease, and in my judgment it is appropriate in this case to invoke, as the Master did, the device of corrective interpretation, so as to give effect to the obvious intention of the parties that the means of access to the upper floors was part of the demise. Alternatively, if, as the claimant maintains, the headlease is capable of two interpretations, then 'it is generally appropriate to adopt the interpretation which is more consistent with business common sense': see Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900 at [29]-[30], cited in the Network Rail case. On any view, the interpretation which accords with business common sense is that advanced by Raebarn.
34. I am fortified in my conclusion by the surrender by D4 to Raebarn of the ground to first floor staircase and entrance hall of 194 KPR in July 1998, for a premium of £18,000. No doubt the space in 194 was then available to Raebarn to expand the retail premises on the ground floor. That transaction, carried out between experienced business people, shows that the parties believed that the common parts below first floor level were part of the demise. (It is worth adding, although hardly determinative, that Ruth Maxted, a Raebarn director, confirms in her witness statement dated 30 July 2014 her understanding that the means of access was included in the sale).
35. It seems to me immaterial that the solicitors for D5 contended, in a letter dated 20 July 2009 (responding to the claimant's letter before action), that the common parts below the first floor had not been demised to their client. That was an obvious argument to raise in response to the claimant's letter before action. But it is not even evidence of the understanding of D5, and still less is it helpful as an indicator of the intentions and beliefs of D5's predecessor in title at the time that the headlease was entered into.
36. Nor am I impressed by Mr Stevens' argument that the Master should not have decided this point on a summary basis, but should have left the matter to be decided at trial on the basis of evidence of negotiations. Evidence of pre-contractual negotiations is generally excluded as an aid to construction, unless rectification is sought (see for instance Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101, in particular per Lord Hoffmann at [41]). And – as the Master rightly observed – the claimant has no standing to seek rectification of a lease to which she is a stranger.
37. I should add that I am not confident that the words of the headlease, although clumsy, are necessarily as ambiguous as has been suggested. It seems to me at least arguable that the list of inclusions and exclusions which follows the opening proposition that the demised premises are those edged red on the plan is designed to give greater particularity to, but not to contradict, the extent of the demise. It would be very curious to read the exclusion (strictly, the non-inclusion) of any part of the building lying below the first floor joists as excluding from the demise the very common parts which have already been stated to be part of it. If that is right, then the non-inclusion of any part of the building below the first floor joists refers to any such parts apart from the parts identified on the plan. But it is not necessary to reach any decided view on that question.
38. In conclusion, in my judgment the Master was right to grant Raebarn summary judgment in respect of the OLA claim. The claimant has no real prospect of succeeding in this part of her claim, and there is no other reason for it to go to trial.

The claim under the Defective Premises Act 1972

39. It is the claimant's case that if (as I have found) the staircase and entrance hall were demised to D4, so that Raebarn then ceased to be occupiers of those parts of the building, then a duty of care arose under the Defective Premises Act 1972 (DPA).
40. It is common ground on the pleadings that by clause 3(3) of the headlease D4, as tenant, covenanted at all times to put and thereafter keep the premises in good and substantial order, condition and decoration, including the remedying of any inherent defect in the premises, and that, by clause 3(7), Raebarn, as landlord, had the right to enter on the premises and repair and reinstate them if the tenant was in breach of its obligations.
41. DPA ss 3 and 4 provide (so far as at all material) as follows:

3. Duty of care with respect to work done on premises not abated by disposal of premises

(1) Where work of construction, repair, maintenance or demolition or any other work is done on or in relation to premises, any duty of care owed, because of the doing of the work, to persons who might reasonably be expected to be affected by defects in the state of the premises created by the doing of the work shall not be abated by the subsequent disposal of the premises by the person who owed the duty.

4. Landlord's duty of care in virtue of obligation or right to repair premises demised

(1) Where premises are let under a tenancy which puts on the landlord an obligation to the tenant for the maintenance or repair of the premises, the landlord owes to all persons who might reasonably be expected to be affected by defects in the state of the premises a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury or from damage to their property caused by a relevant defect.

(2) The said duty is owed if the landlord knows (whether as the result of being notified by the tenant or otherwise) or if he ought in all the circumstances to have known of the relevant defect.

(3) In this section "relevant defect" means a defect in the state of the premises existing at or after the material time and arising from, or continuing because of, an act or omission by the landlord which constitutes or would if he had had notice of the defect, have constituted a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises; ….

(4) Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is, or by notice or otherwise can put himself, in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from, or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy…

42. It was at one stage part of the claimant's case that s3 imposes on Raebarn, as landlord, a statutory duty of care in respect of defects existing at the time of the creation of the headlease as a result of works of construction, repair, maintenance or demolition done on the premises. That limb of the case was not pursued in oral argument, no doubt because the claimant now accepts that the works for which planning permission was obtained, which included the removal and replacement of the existing staircase at 196 KPR, were carried out not by Raebarn but by D4, after the headlease was entered into. Raebarn were not designers or builders.
43. For the purposes of Raebarn's application and this appeal, it is not in dispute that given Raebarn's right to enter under clause 3(7) of the headlease, it had the right within s4(4) to enter 'to carry out any description of maintenance or repair of the premises', and therefore in principle falls to be treated as under a duty within s4(1) 'to all persons who might reasonably be expected to be affected by defects in the state of the premises … to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury … caused by a relevant defect'. It is also not in dispute for present purposes that Mr Dodd fell within the category of persons to whom that duty was owed.
44. On the claimant's case, the rebuilt staircase at 196 KPW had a number of defects, including the lack of a handrail, the lack of natural or permanent artificial lighting, the use of a light switch which did not remain on for long enough, and over-narrow treads and over-high risers; but in oral argument the focus was on the lack of a handrail, which might be thought to have been the most important single factor in (as the claimant would have it) making the staircase unsafe. The case pleaded in the Particulars of Claim is that these defects were the result of the works carried out by D4 in 1988, which breached the terms of planning permission and the Building Regulations. In the Reply, it appears to be an alternative case that the handrail might have been removed, and the staircase risers and treads, might have been altered later, but at any rate before 1995, although (as I have said) there is no evidence that such alterations were made. It seems highly likely that the defects, if that is what they were, were the product of D4's rebuilding. At any rate, they were present when Mr Dodd had his accident, and the staircase had been in that state for at least 12 years.
45. In at least two respects, arguments made by the claimant in the initial skeleton argument were not pursued or were abandoned in oral argument. One was the submission that there was a duty under s2 of the Building Act 1984, owed by the owner or occupier of a building, to comply with Building Regulations. To take this point very shortly, it does not seem to me that s2 of the 1984 Act (or s4, which is also referred to) imposes any such duty. It appears to provide that Building Regulations may impose certain duties and requirements on owners and occupiers. In other words, it is an enabling provision. I will say no more about that, since, as I understood Mr Stevens, it played no part in his argument.
46. The other was that Raebarn had a duty of inspection. That was put on the footing that s4(1) imposes a duty to take such care as is reasonable in all the circumstances, which could not have been complied with by making no inspection for at least 12 years. Had an inspection been carried out, the defects would have been discovered. That argument relied in part on the case of Sykes v Harry [2001] QB 1014, where (on the facts found by the trial judge) some form of inspection or enquiry by the landlord should have taken place. That was a case of the leakage of gas and fumes from a defective gas fire, where the landlord was well aware of the importance of regular servicing and of the risk of development of defects if servicing did not take place, knew that the fire had never been serviced and did not expect it to be serviced by the tenants. There was a real risk that defects would have occurred. The question which the trial judge should have asked himself was whether, in the light of his findings of fact, the landlord had been put on inquiry that there was a real risk that such defects had occurred. In the circumstances, the landlord should have serviced the fire or inspected it or enquired of the tenant about its state. Not having done so, he was in breach of his duty under s4(1). On the strength of Sykes v Harry, it was submitted in Mr Young's skeleton argument that Raebarn had an obligation to inspect the staircase when it was completed, and periodically thereafter, to ensure that it was not suffering from any relevant defects. Raebarn had failed to inspect and thus failed to detect the lack of handrail and other defects. Mr Nugent deprecated the suggestion that Raebarn was obliged to inspect the demised premises, and to supervise D4's re-construction of 194 and 196 so that if D4 failed to build in accordance with planning permission, Raebarn was obliged to intervene. It meant, if correct, that Raebarn had a duty to supervise not just construction but maintenance as well, in perpetuity, and that they were liable to visitors for the actions of the immediate owner of the common parts. Raebarn would, apparently, be bound to install better lighting, to monitor its operation and the timer, to install anti-slip edgings on the stairs, and to ensure that Building Regulations were complied with: it would even, he argued, on the strength of the claimant's pleaded case as amplified in Further Information, be obliged to alter the staircase against the wishes of the underlessees. That, he submitted, would be an unprecedented interference with property rights.
47. The decision in Sykes v Harry is authority for the extent of the duty arising under s4(1), but in my judgment it does not decide that there is a general duty on landlords to inspect to ensure that defects do not develop, or to check on compliance by a lessee with the requirements of planning permission or Building Regulations. On the facts of that case it is easy to see why the duty under s4(1) was held to include a duty to inspect, but I see no basis for imposing such a duty in the present case, where there is no reason to suppose that Raebarn knew or should have known that dangerous defects might arise by reason of D4's works of alteration. The proposition that Raebarn should have inspected to check that D4 had complied with planning permission and Building Regulations seems to me to be fanciful and unsupported by authority. That duty fell on D4 and on the local planning authority, not on the freeholder.
48. However, it eventually became clear in the course of Mr Stevens' reply that the duty of inspection was relied on only in the context of the OLA claim, not the DPA: the claimant's case under the DPA was rather that there were defects, the most crucial of which was the absence of the handrail, that the defects constituted a want of repair under clause 3 of the headlease, and that Raebarn knew or should have known of them.
49. In oral argument, Mr Stevens started from the alleged defects, in particular the lack of a handrail. Those defects were present when the staircase was rebuilt by D4 or at some later stage before 1995, and certainly before the accident in 2007. Moreover, the plan attached to the headlease appeared to show that there had been a handrail at the date of the demise. So the handrail was removed by D4 when it rebuilt the staircase and either not replaced or later removed, in the face of the requirements of planning permission and building regulations. Although Mr Nugent did not accept that there was evidence of a pre-existing handrail, the plan does appear to show one, and it is at least arguable that a handrail had been in place at the time of the demise.
50. Mr Stevens argued that by virtue of s4(4) of the DPA, Raebarn's right to enter and carry out repairs under clause 3(7) of the headlease became a duty to execute those repairs, in so far as necessary to ensure the safety of anyone who might be injured by the disrepair, where Raebarn knew or ought in all the circumstances to have known of the defect requiring repair. The covenant under the lease was in wide terms, and the absence of a handrail, the non-compliant treads and risers, and the inadequate lighting amounted to a relevant defect within s4(3), because they were a defect in the state of the premises arising from the failure to keep them in good order and condition. He relied on Quick v Taff Ely Borough Council [1986] QB 809 at p821 for the proposition that 'repair' connotes a condition worse than it was previously. There had arguably been a handrail at the time of the demise; after the staircase was replaced there was no handrail, in breach of planning permission and Building Regulations, or it was later removed; and the absence of a handrail was a defect which could be said to arise from failure to comply with an obligation to repair.
51. For that last proposition Mr Stevens relied on the first instance decision in Hannon v Hillingdon Homes Ltd [2012] EWHC 1437 (QB). The defendant was a management company through which a local authority managed its housing. It had a long term maintenance contract with a company of which the claimant was an employee. The claimant heating engineer was sent to do work on a boiler which involved moving between the boiler (on the ground floor) and a hot water tank (on the first floor) via a staircase which lacked a banister, so that the staircase was at least partially open. The banister had been removed some 20 years before. The claimant fell through the open space and injured himself. The tenancy agreement required the landlord to keep the structure and exterior of the property in repair and proper working order. The judge held that the staircase was part of the structure and the banisters were an integral part of the staircase, so the banisters fell within the scope of the repairing covenant. It was self-evident that the absence of the banisters was a defect in the state of the property which was continuing because of the failure or omission of the party responsible for repairs to replace it. There was therefore a relevant defect within s4(3). Moreover, the landlord had an express right to enter the property to carry out repairs and a further express right to visit and inspect the property for the purpose of seeing whether it should exercise that right. The landlord could have inspected and repaired the banisters, and it was liable for not carrying out those repairs even if it did not have notice of the defect (although on the facts it was found that notice had been given).
52. Not only did Hannon show that the absence of a handrail was a defect which could be said to arise from failure to comply with a repairing obligation, but the present case was a fortiori, because Mrs Dodd did not have to show that the handrail had been part of the structure: in the headlease the obligation was to keep the premises (not the structure) in good and substantial repair.
53. As for the requirement of actual or constructive knowledge under s4(2), Mr Stevens relied on the evidence of the claimant's witnesses Ruth Maxted, a Raebarn director, and Mr Ogden-Newton, an employee of Raebarn's managing agents, and his property management file, which shows (inter alia) a report dated September 2007 by surveyors advising that a schedule of condition should be prepared for the common parts. Both Ms Maxted and Mr Ogden-Newton visited the premises after the work was completed. Had they been familiar with the terms of planning permission, as they seem likely to have been, given that Raebarn's consent for the application was required and given, Mr Stevens submits that they must have noticed (at least) the lack of a handrail on the staircase. It was immaterial whether they realised that the lack of a handrail was in fact a defect. They were a professional landlord and agent, and at the least they had constructive knowledge of the relevant defect.
54. For Raebarn, Mr Nugent submitted (I think this was common ground) that the statutory duty under s4(1) was inherently tied to, or at least was no wider than, the landlord's duty to repair. That submission finds support in the words of Laws LJ in Alker v Collingwood Housing Association [2007] EWCA Civ 2230, at [11]: 'In general terms it is clear that the reach of the duty arising under s4 is no longer than the reach of the covenant to repair and/or maintain owed by the landlord in any particular case', and in Sykes v Harry (above) at [21]. The section therefore provides no redress if the property was not in a state of disrepair within the meaning of the covenant at clause 3(7). Mr Nugent argued that the DPA could only have any relevance if Raebarn was under a duty to install a handrail where none had existed, or to replace it if it had been removed.
55. Mr Nugent relied on Quick v Taff Ely BC [1986] 1 QB 809 for the scope of repairing covenants and the definition of 'repair'. In that case, liability was asserted under an ordinary repairing covenant to keep the structure of a house in repair, implied by the Housing Act 1961 s32. Living conditions in the house were 'appalling' because of condensation, and it was at times virtually unfit for human habitation. Dillon LJ found helpful the observation of Atkin LJ in Anstruther-Gough-Calthorpe v McOscar [1924] 1 KB 716 at 734 that repair 'connotes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged', and concluded that where the obligation was to keep the structure of the house in repair, the covenant would only bite where there had been damage to the structure which required to be made good. The problems caused by condensation, which were the result of unsuitable windows and poor insulation, did not amount to disrepair. Lawton LJ observed that:

'…the landlord need not do anything until there exists a condition which calls for repair. As a matter of the ordinary usage of English that which requires repair is in a condition worse than it was at some earlier time'.

56. The Court of Appeal reached the same conclusion in Ratcliffe v Sandwell Metropolitan Borough Council [2002] EWCA Civ 6; [2002] 1 WLR 1488. The properties under consideration were affected by condensation, damp and mould caused by defects in design. While defects in design which had led to disrepair might require the landlord to remedy the design defects which were the cause of the damage, the works required to remedy the design defects in Ratcliffe were not works of repair, even though they were defects which posed a danger to health. At [81], Chadwick LJ thought it significant that Parliament chose to link the duty of care imposed by s4(1) to the landlord's failure to carry out an obligation 'for the maintenance or repair' of the premises (s4(3)):

"That is the framework within which the statutory hypothesis in section 4(4) must operate. Parliament did not, as it might have done, link the duty of care to a failure to remedy defects in any more general sense. The obligation to "repair" has a well recognised meaning in the law of landlord and tenant; and, as the cases show, it does not arise unless the object in respect of which it is imposed is out of repair. If the defect which has caused the injury in respect of which a claim is made under section 4(1) of the 1972 Act is not a defect arising from want of repair, it cannot be a "relevant defect" for the purposes of the section. As Lord Justice Ralph Gibson put it in the McAuley case at page 145D:

'There is, I think, no warrant for a wide construction for the words of section 4. They apply to all landlords, and not merely to local authorities, and can operate so as to impose a substantial burden upon a landlord in respect of premises under the immediate control of the tenant and in respect of which the landlord has assumed no contractual obligation'."

57. In Alker v Collingwood Housing Association [2007] EWCA Civ 343, the claimant was the tenant of the defendant housing association, which undertook to repair and maintain the premises and to keep them in good condition. The defendant was therefore under a duty under s4(1) to take care that all persons who might be expected to be affected by defects in the state of the premises were reasonably safe from defects arising from a failure to maintain or repair. The tenant was injured when she put her arm through a glass panel in her front door. The glass was ordinary glass, not safety glass (which had been understood to constitute a safety hazard since at least 1963) but had been intact and undamaged before the accident. It was held that the covenant to repair and maintain a property and keep it in good condition did not encompass a duty to make safe something which was not in disrepair. It followed that the state of the glass panel did not constitute a 'relevant defect' within s4(1) DPA. Laws LJ, with whom the other members of the court agreed, found at [13]-[14] that the court below had been wrong to equate a duty of repair and/or maintenance with a duty to make safe, and the more so because the glass panel had not been in disrepair at all, nor had there been a failure to maintain it. Even a duty to keep in (or put into) good condition could not encompass a duty to put into safe condition:

'A house may offer many hazards: a very steep stairway with no railings; a hidden step; some other hazard inside or outside the house of the kind often found perhaps in particular in older properties. I do not think it can be said that the Act requires a landlord on proof only of the conditions I have described for the application of section 4 to make safe any such dangerous feature'. [14]

58. It appears, therefore, that the duty of repair is not to be equated with a duty to make safe or even to make habitable. It is limited to a duty to put right something that is in a worse condition than it was at some previous time. Moreover, the words of s4 should not be given a wide construction, because they can operate to impose a substantial burden on a landlord to put right matters which are under the control of the tenant.
59. I accept that it is arguable that the lack of a handrail, and such other failures as there may have been by D4 to comply with the terms of planning permission and Building Regulations, may amount to a defect in the state of the premises. However, for liability to attach under the DPA, it must have amounted to a relevant defect as defined in s4(3). That is to say, the defect must be one which arose from or continued because of an act or omission by the landlord which constituted, or would - if he had had notice of the defect - have constituted, a failure by him to carry out his obligation to the tenant for the maintenance or repair of the premises. As the case of Ratcliffe shows, the duty of care imposed by s4(1) is linked to the landlord's obligation 'for the maintenance or repair' of the premises: it is not linked to an obligation to remedy defects in any more general sense. As Chadwick LJ explained, if the defect complained of is not a defect arising from want of repair (or, no doubt, want of maintenance, but that is not relevant here), then it cannot be a relevant defect for the purposes of s4(3). The tenant's obligation under clause 3(3) of the headlease was to keep the premises in good and substantial repair, order, condition and decoration, including the remedying of any inherent defect to the premises as and where necessary in order to keep the premises in that condition, so of course Raebarn's right of entry extends to the carrying out of all such works. But the statutory hypothesis created by s4(4), and the duty to the tenant under s4(1), extend only to maintenance and repair. The obligation to repair, as the authorities show, does not arise unless the object in respect of which it is imposed is out of repair.
60. Is the position different because, as it appears, D4's reconstruction breached both planning permission and (at least as far as the handrail is concerned) Building Regulations? That is the claimant's position. It is true that in Alker's case there was no question of non-compliance with such regimes. But I cannot find that to be a basis for distinguishing it. If, before Mrs Alker was injured, the glass panel in her door had been replaced with new non-safety glass, in breach of Building Regulations, I cannot see that the decision would have been different. The panel would still have been in good repair, albeit unsafe. So here: there is no evidence that the staircase, as replaced by D4, was other than well constructed. It had steep stairs and no handrail, which probably made it unsafe, but it was not in any sense out of repair.
61. The claimant refers to the plans attached to the headlease, which are said to suggest that there was a handrail between the ground and first floors at the date of the demise, before D4 carried out its rebuilding works. Even if that amounted to reliable evidence that there was indeed a handrail until 1988, as to which I am sceptical, I do not see how it can be relied on to support the proposition that the premises were not in good repair after the rebuilding works had been carried out. The staircase was completely rebuilt. It was a new structure. It could have been (although on the facts it may not have been) a radically different design from its predecessor. The previous staircase seems to me to have no relevance to the issue.
62. In my judgment, the case of Hannon does not assist the claimant. Mr Nugent submitted, correctly in my view, that Hannon is not authority for the proposition that the lack of a handrail is necessarily a relevant defect. Had the staircase in Hannon been designed and built as an open staircase, there would have been no redress. The decision was that the banister (with handrail) had been part of the structure of the house, so that its removal by the tenant meant that the structure was no longer in repair. Had the facts been not that the tenant took down the banister but that landlord ripped out the whole staircase and replaced it with a banister-free staircase in the open-plan style popular in the 1960s, then it seems to me that again there would have been no redress, because the new staircase would have been different, and no doubt relatively unsafe, but not out of repair.
63. My conclusion, reached not without regret, is that the claimant cannot succeed in her claim under the DPA because D4's failure to install a handrail and its apparent non-compliance with Building Regulations did not constitute relevant defects within the meaning of s4(3). It seems to me obvious that the lack of a handrail was potentially dangerous, and of course that is why a handrail was required by Building Regulations. But authority constrains me to hold that potential dangerousness is not the test under the DPA.
64. My conclusion might have been different had there been any evidence that the handrail had been removed after D4's reconstruction, between 1988 and 1995, because in that event there would have been an argument, along the lines of Hannon, that its removal gave rise to a relevant defect. But that scenario seems to be wholly speculative and fanciful, because the probability, as the claimant's pleaded case suggests, is that the non-compliance with planning permission and Building Regulations dated from the reconstruction. There is simply no evidence that a handrail was installed and later removed.
65. Given that there was, in my judgment, no relevant defect, the question of knowledge within s4(2) does not arise.

The claim in common law negligence

66. I shall deal with this aspect of the claim relatively shortly. D4 was not in any sense Raebarn's agent to carry out the work. Raebarn was not (as I have found) the occupier.
67. An obvious obstacle to the claim at common law is Cavalier v Pope [1906] AC 428, which decided that a landlord who lets premises in a dangerous condition owes no duty to remedy the defect and no duty of care to a third party injured as a result of the defect. The decision has been much criticised, and in Rimmer v Liverpool County Council [1985] QB 1, where it was distinguished by a holding that the local authority landlord which had designed and built the premises owed a duty of care to the tenant as the designer and builder, although not as landlord, it was said that it should be kept in close confinement. Nonetheless, it appears still to be good law. Lips v Older [2004] EWHC 1686 (QB); [2005] PIQR P14 does not assist the claimant, for although the claimant succeeded against his landlord at common law, there is nothing in the decision (where Cavalier seems not to have been cited) to suggest that the existence of a duty of care was disputed. That was the conclusion of the judge in Drysdale v Hedges [2012] EWHC 4131 (QB); [2012] 3 EGLR 105, where a claim in common law negligence was dismissed. The landlord had painted the front door steps of the house let to the claimant with paint which made them unduly slippery in wet weather, as a result of which she fell (like the claimant in Lips v Older) into a basement area. The judge concluded that where personal injuries result from a failure to repair, then the duty of care is that set out in the DPA 1972, but where the DPA does not apply (as it did not in that case) then a landlord owed a duty to take reasonable care not to create an unnecessary risk of injury. On the facts, the duty was not breached.
68. Mr Stevens argued that since Cavalier, Rimmer and other cases had advanced the law. He mentioned Lips v Older, but I have already referred to the limited effect of that decision, and he relied on the fact that in Drysdale, common law negligence was found to be at least potentially arguable. But it was arguable only on facts that, as in Rimmer, entailed actions taken by the landlord. The position of Raebarn is very different. I cannot see any basis on which Raebarn could be held responsible at common law for the actions of its lessee in failing to install a handrail. Mr Stevens also prayed in aid the principle that it is not appropriate to strike out a claim in an area of developing law. I do not think that principle applies to the pleaded facts of this case.
69. In short, I see no basis on which the common law claim is sustainable. Raebarn did not design, build or install the staircase; it was not responsible for any breaches of planning permission or Building Regulations, nor did it have any duty to inspect to ensure compliance; and it had nothing to do with the installation or non-installation of a handrail. As the Master rightly said, Raebarn had no control over the premises and its responsibility was limited to a right to enter to repair.

Conclusion

70. There is therefore no real prospect of success on any part of the claim. Summary judgment was properly granted by the Master, and the claimant's appeal must therefore be dismissed.
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