Housing Law Practitioners’ Association Meeting

Minutes of the Meeting held on 20 January 2010Portland Hall

University of Westminster

Winter 2009/10: Disrepair in a Cold Climate

Chair Dominic Preston, Doughty Street Chambers

Speakers: Deirdre Forster, Powell Forster SolicitorsStephen Evans, Five Paper Buildings Chambers

Meeting Overview

1. Winter 2009/10: Disrepair in a Cold Climate

Stephen Evans provided an update of recent disrepair cases, including: Ryan v LB of Islington [2009] EWCA Civ 578, CA (whether in a claim for disrepair a tenant could

claim damages for a lost opportunity to exercise her right to buy by reason of her inability to get a mortgage because of disrepair to the property);

Scinto v Newham LBC [2009] EWCA Civ 837, CA (whether landlord was prevented from asserting that disrepair at the property was not a relevant matter for the purposes of s. 140 of the Housing Act 1985 (per Ryan) by reason of promissory estoppel such that right to buy application was still live pending the carrying out of works);

Heffernan v LB Hackney [2009] EWCA Civ 665, CA (it was for a claimant to plead the damage claimed in a disrepair case and the method by which he arrives at the claim; that a claimant should plead an alternative approach if he has one);

MSA v LB Croydon [2009] EWHC 2474 (Admin), Collins J (the circumstances in which penal notices attached to injunctions made against public authorities);

Jackson v JH Watson Property Investment Ltd [2008] EWHC 14 (Ch) (meaning of covenant to ‘well and substantially repair and maintain the exterior of the estate and all structural parts thereof’; whether covenant sufficient to require landlord to remedy disrepair existing before the grant of the covenant).

Deirdre Forster gave a practical talk on establishing liability against landlords for those matters not usually covered by section 11 of the LTA 1985, including liability for burst pipes, infestations in their various forms and a detailed (and at times slightly nauseating!) description of how different insects and pests infiltrate properties and how that information is useful in formulating a claim, and how negligence and nuisance could still have a part to play in such claims.

In the course of questions, the term implied at common law into tenancies of furnished lettings (that they be fit for human habitation) came under scrutiny. Nik Nicol advocated consideration of the original ratio for that rule and its possible application to other tenancies which are not furnished: see Smith v Marrable and Wilson & Finch-Hatton.

2. Information Exchange

Robert Latham gave a very helpful summary of the recommendations in the report by Jackson on the review of civil litigation costs. Robert’s summary will shortly be available on the HLPA website. It was clear that Jackson was still looking at fixed costs for fast track cases and a discussion followed concerning the way in which information was being sought to implement this and the degree to which HLPA could and should assist, bearing in mind that the questions being asked by Jackson’s team appeared simplistic and unhelpful.

The meeting heard about the listing of Pinnock in the Supreme Court (5-8th July) and its potential impact. A number of consultation papers are also out which require members’ attention, including papers on the following topics: mortgages, power of sale and residential property; Mortgage Regulation; Amendments to Administrative Court practice; Tenants’ Services Authority’s A New Regulatory Framework for Social Housing in England.

Minutes

Chair: Good evening everyone. My name is Dominic Preston, I am a member of the Executive and of Doughty Street Chambers. Firstly, does anybody have any corrections to the Minutes of the last meeting? Secondly, I would like to mention two consultation papers which you, as individuals, may wish to make responses on. The first is a consultation paper from the Ministry of Justice on mortgages, power of sale and residential property, the closing date for which is 28 March. As an organisation we invite you to make your own representations or to do so through David Watkinson at Garden Court Chambers. There is also a consultation on Administrative Court practice and improvements in judicial review and in Part 54. The closing date is 26 February 2010 and you can email either Robert Latham at Doughty Street Chambers or David Watkinson at Garden Court Chambers if you want to get details of that. If anybody has recently seen the Jackson Report of which there will be some mention later, HLPA was extensively quoted in that and I really do recommend that you make individual responses or through HLPA; it does make a difference.

I will now move on to introducing our two speakers for this evening. Our first speaker is Stephen Evans, who is a barrister and property team leader at Five Paper Buildings. Our second speaker this evening is Deirdre Forster of Powell Forster solicitors; she is very experienced in private practice working on disrepair cases through the County Courts and is the co-author of Legal Action’s book: Repairs, Tenants’ Rights.

Stephen Evans: May I begin by thanking you for asking me to come back to speak to you once more about the gripping subject of disrepair. It is good to see lots of old faces here and to meet the new ones as well. Now I wish I could say that my recent case round-up is going to warm the cockles of the hearts of tenant practitioners; I am afraid it is not. But it is pleasing to see a number of appellate court decisions in 2009 which have brought disrepair back to the notice of us all and I am going to begin by addressing you on a couple of cases to do with Right To Buy applications; one good, one bad.

We start off with Ryan v London Borough of Islington and that is a cracking case because it is to do with structural movement and the essence of Miss Ryan’s claim was that Islington was not entitled to require her to complete purchase of her Right To Buy application before it had carried out underpinning works to the rear addition of the premises. Now, at the time of the Right To Buy application Islington was unaware of the actual subsidence to the foundations of the property. However, the lower court had found that Islington was aware of at least some cracking before they admitted the Right To Buy. The Section 125 offer which, as you know, is the offer by the local authority to the tenant to purchase at a specific price had attached to it the district valuation report and that report noted only that there were ‘sloping and springy floors throughout’ and that there was some evidence of damp. Two months after that offer was made Islington made a formal diagnosis of subsidence and, more importantly, that it required underpinning. Now fundamental to Miss Ryan’s claim was that she said that she had been assured that that underpinning would be carried out by a specific date, by Spring 2004, essentially six months after the diagnosis of subsidence. She accepted, therefore, the Section 125 offer but Spring 2004 came and went and by September 2004 still no works had been done by Islington and Islington then served a notice to complete on Miss Ryan and then they served the second notice to complete in November 2004. Miss Ryan’s response was understandable although ultimately we will see that her problem with the argument was in the lack of evidence that she had. Her response was, “well, I can’t get a mortgage whilst this subsidence problem is outstanding,” so Islington said, “well, we’re withdrawing the offer; you’ve failed to complete” and as a result of that Miss Ryan then implemented the disrepair protocol in June 2005.

You will see from the slide that the underpinning works were eventually undertaken in November and December 2005. Miss Ryan issued a claim for damages after that protocol period had expired and in fact she was awarded damages but the important issue in this claim was her seeking a declaration that she was still entitled to exercise that Right To Buy; an offer which had been made in August 2003

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at a substantial discount at that time. In the alternative, if she did not have that right to exercise her Right To Buy still, she wanted to claim damages for loss of that Right. Now the main issue in the claim and indeed on appeal, was did Miss Ryan notify Islington of “relevant matters” that were “outstanding”? What does that mean? Well, look at Section 140 of the Housing Act 1985, a “landlord may, subject to the provisions of this section, serve on the tenant at any time a written notice requiring him: (a) if all relevant matters have been agreed or determined to complete the transaction within a period stated in the notice, or (b) if any relevant matters are outstanding, to serve on the landlord within that period a written notice to the effect specifying the matters. Crucially, sub-section (5) “in this section ‘relevant matters’ means matters relating to the grant.” So the mechanism of that is, essentially, notices served but if there is a notice by the tenant that ‘relevant matters’ have not been agreed or determined that has to be sorted out first.

Firstly, there was a preliminary argument by counsel for Miss Ryan, “on the assumption that subsidence was a structural defect which needed to be disclosed”. Counsel for Islington, Ranjit Bhose, argued that it was not, but on the assumption that subsidence was a structural defect which needed to be disclosed, Miss Ryan had waived any right that she had arising out of non-disclosure of subsidence in the Section 125 Notice. So explaining that a little more fully, the fact that Islington in their district valuation report attached to the Section 125 offer had noted only ‘cracking’, ‘sloping floors’ and a bit of dampness did not help Miss Ryan in this claim. The reason that it did not help her was obvious; she was prosecuting her claim for a declaration that the Section 125 offer was valid. In order to have her Right To Buy progressed as of August 2003, she was relying on there being a Section 125 valid offer and acceptance. So she had not repudiated the contract and claimed damages; she wanted that contract to go forward in order to get conveyance of the property and the price in August 2003. That is a red herring. The real issue in the case was that the proposition that remedying of the subsidence was an outstanding matter relating to the grant, in other words, could we hold up the Right To Buy on the basis of the disrepair? The Recorder in the lower court had held that outstanding matters relating to the grant were confined solely to conveyancing matters only. The Court of Appeal held ‘relating to the grant’ does not naturally embrace the notion that the phrase is concerned with the physical condition or disrepair or structural efficiency of the property so it really is confined to conveyancing matters only. Moreover, the Court held it was necessary for Miss Ryan to point to something in the Right To Buy legislation that imposes an obligation on a vendor to carry out works prior to completion. In order words, a right to insist that completion be deferred until all works of repair had been executed. On the contrary, they were saying, a Section 125 Notice infers that such matters will be dealt with after completion. Part V of the Housing Act 1985 contains to warrant for any inference that a purchasing tenant is entitled to insist on having structural defects or items of disrepair remedied before completion.

As for the damages claim which, as you know, is the alternative to the claim for the loss for the declaration, in assuming the repair and obligation, as it did, Islington was not assuming an obligation to compensate Miss Ryan in the remote circumstances in which, because of a failure to comply with such covenants, Miss Ryan was unable to complete her purchase. Any such purchase was not in contemplation of the parties when the secure tenancy was granted. Again, let us break that down; go back to your contract lectures, No 3 Rules for Measure of Loss. Remember the rule in Hadley v Baxendale, you can claim damages for breach of contract for those which are a natural and direct consequence of the breach or those that were in the contemplation of the parties at the time that the contract was entered into as a foreseeable consequence of the breach. So in this case they are simply saying, the Right To Buy was not in contemplation of the parties at the time the secure tenancy was granted therefore it did not come within the second limb of the rule in Hadley v Baxendale and clearly it was not a natural and direct consequence of the breach. Now, they did not discuss Hadley v Baxendale but that is the way I think you can best explain that particular part of the judgement.

Now, slightly better news, Scinto v Newham LBC, this one seems to have escaped the LAG repairs round-up in December 2009, but I have dug it out and it was good news for the tenant. Ryan was distinguished. A similar situation with a serious structural problem; it is not further identified in the Law Report, but a serious structural problem discovered by Miss Scinto’s solicitors after the Section 125 offer. Now, crucially, in this case Newham agreed to suspend the Right to Buy application pending investigation by its technical repairs manager. By the time of the Notice to complete and, indeed, a similar circumstance happened as in Ryan, a Notice to complete came to be served, repairs had still not been executed. In December 2004 Miss Scinto issued a claim for disrepair which was, this time, compromised, i.e. they agreed to pay her some damages. Again as in Ryan, the tenant sought a declaration that she was entitled to exercise the Right To Buy on the terms of an offer, in this case as long ago as December 1999, so a pretty good valuation from that time. The decision was dealt with at the first instance by His Honour Judge Barnett QC and gave judgement for the tenant holding the

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repairs were a relevant matter. On appeal by Newham, the Court of Appeal dismissed the appeal and the counsel for Newham, Miss Naomi Hawkes, said in a supplement to the skeleton argument, “look at this, it’s the Ryan decision, it’s not an outstanding matter relevant to the grant.” But the Court of Appeal said no, the tenant had a valid claim. The parties had, by their own conduct, and in essence having agreed, taken the matter of carrying out repairs as being a matter relating to the grant within the meaning of Section 140. Furthermore, they approved what the lower court had said, that the facts sustained an argument for promissory estoppel, in terms that Newham would not proceed with the Right To Buy process until the repairs were effected.

So the concrete advice is this; if you have a tenant who is bringing a claim for disrepair and at the same time prosecuting the claim for Right To Buy, the first advice to give them is that, assuming that they can afford it, to have their own survey done of the property in any event. That would be sensible advice to anybody who is purchasing a new property. If they are unwilling or cannot do that, then, obviously, scrutinise the Section 125 offer and in particular the district valuation survey to see if there are any problems that are indicated as being serious. And if that is the case, then take swift action to write to the local authority and invite them to suspend the Right To Buy application pending those repairs being effected. Now that may be difficult in subsidence claims, of course, because, more often than not the action that would be taken, quite sensibly, is to monitor the situation for a period of six months, twelve months or however. But in any event you may have difficulty because if the local authority chooses not to suspend the Right To Buy then the applicant for the Right To Buy has a very harsh decision to make. Do I continue with the Right To Buy on the basis of whatever the valuation of the premises may be and end up with a property that has a serious defect or do I drop the Right To Buy application and prosecute my claim for repair in the first instance and then reapply for the Right To Buy once the repairs have been effected? I leave it to you to best advise your individual clients in the circumstances of their case.

Heffernan v LB Hackney, my colleague in chambers, Donald Broach, acted for Mr Heffernan and, unfortunately, it is another woeful case for the appellant but quite understandable and there are some very good salutary lessons for us all. Indeed the decision goes back to some basic principles with which we are frequently best reminded to observe. Factually this was it; Hackney served some Housing Act notices to repair on Mr Heffernan. He did not execute all the works, he did some works and he did not appeal the notices in time. The council served summonses on Mr Heffernan but the prosecutions were abandoned because the council took the view that it was unable to prove notice had been served on Mr Heffernan’s mortgagee. We will see what the Court of Appeal said about that in due course. What Mr Heffernan then did was to bring the claim against the council in negligence and for breach of statutory duty under the Housing Act 1985 because his argument was, “well, first of all you’ve asked me to do all these works in purported compliance with the notice which you now say is invalid and, moreover, I haven’t been able to rent the premises for periods when the notices were in effect.” Mr Heffernan’s witness statement did not deal with the issue of quantum. No invoices were appended to the statement to support the alleged partial execution of the works. In oral evidence he claimed to have spent some £30,000 in cash upon executing these repairs and there was some expert evidence produced on his behalf but in cross-examination the expert conceded that there was no documentary evidence to support his figures on the cost of works.

The matter came before Judge Simpson of The Mayors & City County Court. He found, based really on an admission in the pleading by Hackney, that a duty of care had been owed to Mr Heffernan and that there was a breach. However, he rejected the claim for works and for loss of rent. Mr Heffernan appealed against the dismissal of his claim and the council cross-appealed the finding that it owed a duty; alternatively the council were arguing that Mr Heffernan had suffered pure economic loss, which going back to tort lecture No 5 you will remember is irrecoverable in a tortious claim except in some specific exceptional circumstances. Held by the Court of Appeal that the claim for repairs by Mr Heffernan, which he said were unnecessarily executed, and his claims for loss of rent were claims for pure economic loss. However, the real issue before the Court of Appeal was on the issue of loss and whether or not there was any causative link. Was the judge entitled to dismiss the damages claim? Now applying the very grandiose named Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd, the court re-stated the basic rule that it is for a claimant to plead the damage claimed and the method by which he arrives at the claim, that a claimant should plead an alternative approach if he has one and that a claimant “cannot complain if, through opening his mouth too wide, he fails to prosecute a more modest claim and the judge does not deal with the matter as sympathetically as he might otherwise have done.” Accordingly, there was no need to consider the cross-appeal.

Now this was an extreme case and Lord Justice Sedley had some extreme words to say. “It is not permissible to come to court with bald assertions of the kind with which Judge Simpson was

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presented, unsupported by a single document showing payment or loss, and to leave him, as Lord Justice Bowen once put it, like a blind man searching for a black hat in a dark room.” On the issue of the breach of duty he had some obiter dictum, “I know of no principle of public law which renders an otherwise valid notice void if a copy has not been served as required by law on a third party.” It is an extreme case but it does go to show how important it is to marshal all your documentary evidence in support of a claim, in particular for a special damages claim, before you set foot through the doors of the Court. One would hope that you are in the practice of doing that even before you issue the claim.

MSA v LB Croydon is not a disrepair case but I have included it because it may be of assistance when it comes to the issue of penal notices. It concerns being faced by a local authority landlord against whom you have got a claim for specific performance and they have agreed to do the work so they have been ordered to do it and then they do not do it within the time ordered or agreed. This was an Administrative Court claim and in it Mr Justice Collins held that penal notices are not required on orders against public bodies. Would this apply to County Court orders for failure by a local authority to comply with an order for specific performance of repairing covenant? This is what Mr Justice Collins said at paragraph 12, “… I do not think that a penal notice is necessary in orders made against a public body. A failure to comply with an order can be dealt with by an application to the court for a finding of contempt, and if necessary, a further mandatory order which may contain an indication of what might happen should there be any further failure to comply.” It is not a defence, therefore, for the local authority to come along and say, “you haven’t got a penal notice, there can’t be a finding of contempt.” “Adverse findings,” he continued, “coupled with what would probably be an order to pay indemnity costs should suffice since it is to be expected that a public body would not deliberately flout an order of the court.” Only negligently or carelessly. “Were that to happen, the contemnor could be brought before the court and, were he to persist in his refusal, an order could be made which made it clear that if he did he would be liable to imprisonment or a fine.” That could be some help, perhaps, on an approach to be adopted in the frequent circumstances you come across that local authority landlords do not do their repairs.

The fifth case that I am going to take you through is the High Court case and it is Jackson v JH Watson Property Investment Ltd and really the ratio of the case is to do with nuisance although it does deal with the question of inherent defect and whether that comes within the repairing covenant. It dealt with water penetration from a light well outside of a premises demised to Mr Jackson who was a Chancery barrister practising in Liverpool and who was known to the judge but both parties agreed that the claim could be heard in front of him. That defect in the light well was present prior to the granting of Mr Jackson’s long lease. When the building had been converted in 1996 concrete had been laid defectively and as the concrete was honeycombed it allowed water to penetrate which then, by hydraulic action, got pushed up by capillary action and came into the premises. So the issue in terms of the issue on the repairing covenant was whether the state of the premises was in no worse state than at the time of the demise. The repairing covenant included the words, “to well and substantially repair and maintain the exterior of the estate and all structural parts thereof.” So on the wording of the repairing covenant it would include the light well which was under the control of the lessor but outside of the demise. However, it was held that there was no liability under the covenant to repair. You remember the old case of Post Office v Aquarius which was the one to do with commercial premises where the basement flooded up with water every time the winter came and then the water receded away from the basement in the summer. In that case it was the tenant’s repairing covenant and it was held that there was no breach of covenant to repair because there was no physical deterioration to the demise premises; the water was just coming through the brickwork, flooding the basement and then receding. In the absence of a physical deterioration there was no breach of covenant and the premises were in no worse state than they were at the time of demise, so therefore no liability under the repairing covenant.

The more interesting issue was whether or not there was a claim in nuisance. The claimant, not unreasonably, alleged that the defendant had sufficient knowledge of the ingress of water so was to be taken to have “continued” the nuisance. Unfortunately that claim was dismissed and the Court applied the principle of caveat lessee despite some forceful submissions by the claimant that the rule of caveat lessee only applies to things within the demise. The Court, however, said because of the wording in Baxter v Camden, Southwark v Mills that the rule had general application and included the common parts of the demise premises themselves. Rather interestingly again, a salutary lesson of Southwark v Mills and Baxter v Camden was quoted in this Jackson v JH Watson Property case. The quote was from Lord Millett at page 17 and we would do well to be reminded of it when thinking about pleading the claim in nuisance. “The doctrine,” this is the doctrine of caveat lessee, “does not depend on fictions, such as the ability of the tenant to inspect the property before taking the lease. It is simply a consequence of the general rule of English law which accords autonomy to contracting parties. In the

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absence of statutory intervention, the parties are free to let and take a lease of poorly constructed premises and to allocate the cost of putting them in order between themselves as they see fit. Of course, the tenants of local authority housing do not negotiate the terms of their tenancy agreements. They take what they are offered on terms set by the local authority. But the meaning and effect of contractual arrangements cannot be made to depend on the parties’ relative bargaining power. If it is thought right to redress any imbalance by importing terms in favour of the weaker party, this is a matter for Parliament.”

A few cases now on quantum which are a bit happier for us all; they are reported in LAG and if I could say this, could I urge anyone who submits a case on quantum on disrepair to LAG and, indeed the editors of LAG as well, to ensure that they include the weekly rental for the premises over the period for which disrepair is claimed to enable us to do a cross-reference as Wallace v Manchester and English Churches Housing Association v Shine recommend that we do? These are very good quantums, very good figures, but it is difficult to ascertain, apart from one that we have seen, what was, in effect, the diminution of value of the premises as a percentage without those relevant figures so can I urge you to do that?

This one was actually a claim for unlawful eviction, Abbas v Iqbal, reported in August LAG of last year, page 36, Her Honour Judge Diane Redgrave at Bow County Court. Weekly periodic assured shorthold tenancy of a single room with shared facilities, this one has got a rent of £60 a week. What a cracking award, we will hear in a moment from Deirdre who is going to tell us all about infestations but they continue to attract right up to date, long after McGuigan and all those ones that you remember from long ago, substantial awards, £60 per week but £2000 per annum for six years of cockroach and ant infestation.

Gorman and Lane v Lambeth LBC, December LAG, a long lease of a one-bedroom converted flat in a Victorian building; structural movement causing cracking in the walls making the flat cold, draughty and damp. Now it was sold for a substantial undervalue, £185,000 it was worth and sold for £85,000. There were proceedings for loss on that sale brought by Gorman and Lane and general damages of £22,000, special damages of £1500 and interest of £25,000 and the claim was settled for £120,000.

The last two, Aslam v Ali, LAG December, same page in LAG, Birmingham County Court, a four-bedroom house this time, from 2003 to 2006, a period of three or four years, inoperable central heating in all but two rooms, rotten and draughty windows in the kitchen and bathroom and penetrating damp in the kitchen and hallway. The family slept in just two rooms in the house. The boiler was replaced in 2006 by the tenant, the tenant changed the windows to the kitchen and bathroom and the French doors but other defects remained. So it was not as bad after 2006. Diminution in value; 50% for those years up to 2006 and 33% even when the boiler had been fixed and the windows and French doors made better. Special damages were awarded for the cost of replacing windows and French doors. I think I said the boiler was replaced by the tenant and that is an error; I think it was the landlord otherwise I am sure he would have recovered the cost of that as well.

Finally, Smyth v Farnworth, Wigan County Court, same page in LAG; a private tenancy, unfortunately we do not have the figures for the rental values but again it seems to be a cracking result. Water penetration to a conservatory, which is not one of the more habitable rooms in premises, you would usually use it not quite so often perhaps as you would a bedroom or kitchen. A defective boiler for five months, a missing gutter and damage to the bedroom ceiling, not specified; £1000 per annum just for the conservatory leak; £1000 per annum for the defective boiler and £2200 for the other defects. But, and again it is difficult to ascertain quite how good a result this was, there were personal injuries damages awarded which, as we know, can often be difficult to prove on causation terms alone. £5000 for the exacerbation of the claimant’s depression by reason of the defects in the premises and also by reason of a five week period of intimidation by the landlord which had had, to the date of trial, at least two years’ continuing effect upon the claimant and £3500 for the exacerbation of the son’s asthma for a period of two years.

Chair: Stephen, thank you very much indeed. I would now like to ask Deirdre to give her talk.

Deirdre Forster: Good evening everybody. I was asked to give a practical talk rather than a particularly legalistic one, which is probably just as well. But I did think that I should start by talking about burst pipes given the extreme weather that we have just had.

The leading case on burst pipes is Wycombe Area Health Authority v Barnett where Mrs Barnett went away, did not leave her heating on; did not drain the pipes down and did not turn off the stop cock and

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as a result the pipes froze and burst and there was a terrible flood. It was held that she had not behaved in a tenant-like manner; the court did not say she should have left the heating on, it said she should have drained the tank and turned off the stop cock but I think this is in the days of pre-central heating. Nowadays a lot of tenancy agreements require tenants to keep the heating on even when they are away from the property and I would say that is as much keeping property in a tenant-like manner as is draining the tank and turning off the stop cock. There is no duty on the landlord to lag pipes within the dwelling, within the demised premises; that is really bad news, it is completely contrary to what should be public policy in my view, given global warming but that is what Wycombe said.

However, the situation changes completely the minute you are talking about parts of the property which are within the control of the landlord. Under Passley v Wandsworth LBC, because a landlord does not need to have notice of disrepair of parts of the building that are within his control, the minute a pipe bursts the landlord is liable for any damage that results from that disrepair. In Passley v Wandsworth a pipe burst in common parts and completely flooded out the tenant’s property and the tenant was able to recover damages.

Moving on to infestations; I am fed up, since it is what I do more than anything else, in hearing how boring disrepair is so I have decided, as far as I can, to liven things up. Ever since I decided to do a talk on infestations I have been itching and if I do not see a few of you scratching tonight I shall feel I have failed in my job.

Now I am trespassing very much on environmental health officers’ territory here because I am going to tell you what I know about a few of the pests that can cause problems with infestations in property. The first are cockroaches; there are two types that are prevalent in housing in Britain. They love central heating, they love communal heating systems and they have really been thriving as a result of the Decent Homes initiative. They are approximately an inch long, nice long antennae that wave, they are filthy beasts, they spread all sorts of diseases into food stuffs, they are nocturnal, they are extremely resilient. A long time ago now, when I was working in the law centre we had a Section 82 case that we were doing on the basis of a cockroach infestation. Our EHO put a glue trap in the tenant’s home and she brought it in to me as evidence of the infestation. I peered into this glue trap and what I saw where a pile of cockroaches, there were about five or six and they were all waving their antennae at me and they were very much alive! I put the glue trap in a large empty Quality Street tin which I put under my desk. The case settled and we never needed to go to trial so we didn’t need to produce the cockroaches. About three months’ later I thought, oh my God, the cockroaches, so I took the tin out and I opened the tin and they were still there. So I rang the EHO, and I said, “what am I going to do? When are they going to die?” And he said, “these things can survive nuclear holocausts, I don’t know when they’re going to die.” About six months later I gingerly opened the tin again and they had finally expired and were beginning to decompose!

Pharaoh ants are beasts, they are tiny and they spread disease. They are not like our nice black ants that you find in the garden.

I am going to talk to you in detail about bedbugs; if you look very carefully they are beautiful creatures. We advise a lot of students living in furnished dwellings and we are finding this is an increasing problem, once again, I suspect down to central heating. Bed bugs are about 5mm long, they are reddish-brown but they turn purple after a blood meal. They hide in the seams of mattresses, within bed-frames, behind loose wallpaper. In Elizabethan times they were called wall-lice because they spent so much time nesting in walls. They are transferred in infested linen, mattresses, furnishings; their bites cause irritation and itching and they are a devil to get rid of. You hear different ways of eradicating them from different people; the linen, obviously, has to be washed at a hot temperature and ironed – who irons these days? The mattresses need spraying, some pest control companies helpfully tell the tenant that what they have to do is get into the bed after it has been sprayed because the CO2 that the tenant emits at night will attract the bedbugs so they will come out from wherever they are hiding and crawl across the mattress to bite the tenant and at that point, with a bit of luck, they will get poisoned by the insecticide.

Cat and dog fleas will bite humans.

Rats are obviously big, robust, have got nasty muscular tails; they are horrible, they spread disease and they are terrifying. I find frequently that my clients tell me that they have got rats in their house and what I have learned is that in some cultures there is no word for mice because, traditionally, people thought that mice were baby rats and so you do have to distinguish because local authorities

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tend to take rats a great deal more seriously than mice. How do you tell the difference between a baby rat and a mouse, well it is all to do with proportions. A baby rat is going to get bigger and therefore, just like a baby human, he is going to have bigger feet and a bigger head in proportion to his body whereas a grown mouse is going to have a body proportionate to the size of its head and feet.

Squirrels get into properties through holes; they can get through a hole the size of their head so you will understand, going back to Stephen’s talk and I am thinking Jackson v Watson, that a hole can be bad design or it can be disrepair. So you have a problem with causation when you are infested not only by squirrels but by other things. I had a case where there were slates missing on the roof so it was more likely than not that the squirrels were coming in through the slipped slates which were causing water to drip on to the ceiling of the kitchen. As a result, over time, the kitchen ceiling collapsed. My client, when I was taking a history from her told me that when she went into the kitchen she saw a group of squirrels peering down at her through the hole in the kitchen ceiling; she had been told by people that squirrels can be very vicious when they have babies and as a result she was too frightened to go into her kitchen. So I wrote a letter of claim to the other side and I do not know how many of you have come across Chris Barnard from the Housing Law Partnership, he does have a very dry sense of humour. So I phoned him about this case and he said, “oh yes, Miss Forster, the attack of the Were-Squirrels!” I had another case, very similar facts, where the squirrels had hopefully got through holes in the roof, hopefully it was not bad design, and it never went to trial so fortunately we did not have to prove it. But my poor tenant was sitting in her sitting room one evening watching television when things started dropping on to her coffee table and she looked up and realised that maggots were dropping through the ceiling rose. The roof space had been treated for squirrel infestation and a squirrel had rather inconsiderately died immediately above her ceiling rose and the maggots in the decomposing squirrel were dropping on to her coffee table. That was not her only problem and I will come to that in a minute.

Where you get a squirrel infestation you may well a get a pigeon infestation. I doubt that a pigeon could get through a hole that was bad design but they can certainly get through disrepair in a roof. I think they and the squirrels and the pigeons have a party up there, actually. They carry more diseases than rats, I am told by the Ealing EHO website so it must be true. The diseases come from dropping feathers and their parasites and these can be an allergen. Dead pigeons can fall into water sources such as a water tank, a cold or hot water tank that has not been properly covered, as my poor client who had the problem with the maggots discovered when she washed her teeth one night, bits of strange stuff started coming out of the tap. So she reported this to Lambeth and they made a big fuss about it but it was only when we went for disclosure that we found a document from the person who had gone into the roof and examined the water tank and he had found a decomposing pigeon in the bottom of the tank. On the report it was written in large letters DO NOT TELL THE TENANT YOUR FINDINGS. I love disclosure when it works like that!

I suppose we had better do a little bit of law. Right, tenants rights, remedies. The two cases that I want to refer you to here are Welsh v Greenwich LBC and Johnson v Sheffield CC. Neither of those are infestation cases; they are both cases about dampness but they are a very good illustration of why you should always start with your tenancy agreement because, obviously, there is nothing in Section 11 of the Landlord and Tenant Act 1985 that obliges a landlord to keep a property free of infestations. If the property is in disrepair and that causes the infestation you are okay but what about other situations? Well, Welsh v Greenwich had an obligation to keep the property in good condition and Johnson v Sheffield had an obligation requiring the council the keep the dwelling “fit to live in” and I would say that both of those clauses would have helped if it had been an infestation case.

Tort: I still come across people who think that where all else fails you can fall back on negligence where a tenant is injured in a property and it is not their fault. Well, unfortunately this goes right back to Victorian times that a landlord has a sort of immunity from claims in negligence. There are exceptions which I will touch on in a moment but the starting point is that you cannot sue your landlord in negligence. To quote from Rimmer v Liverpool CC the judge said that although the immunity is questionable it is “too deeply entrenched in our law for any court below the highest to disturb or destroy it” - so you have to go to the Supreme Court to hold a landlord liable in negligence. The exceptions: a builder can be liable in negligence, obviously, and the fact that that builder happens to be your landlord will not give him immunity so if your landlord constructed the dwelling you may be able to sue them in negligence. Nowadays most local authorities sub-contract and you can sue the reputable sub-contractor but you cannot sue the landlord in negligence if they have sub-contracted the work, unfortunately.

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A failure of a contractor to use proper materials can give rise to a negligence claim and there is an infestation case; that is Sharpe v Manchester MDC where Manchester took responsibility for the cockroach infestation but they sprayed with DDT which just does not work and as a result they were liable in negligence even though they were the landlord.

Common parts are one of the exceptions to the rule; there is no immunity for a landlord who fails to maintain the common parts, there is lots of legal authority for that; Cockburn v Smith, Lips v Older, good old Liverpool v Irwin.

Nuisance, as you know emanates from neighbouring land where the use and enjoyment of the tenant’s property is interfered with so if the landlord has retained neighbouring land, and this will often be the case in blocks of flats, they may well be liable. An example of that is cockroaches nesting in common parts or gaining access to the flat along ducts that are common parts and retained by the landlord. Watch out though; that will not help you where there are no common parts, a case where there was a block of flats but no common parts retained is the Habinteg Housing Association v James case which is in your notes.

What about where a neighbouring property is infested and as a result your tenant’s property becomes infested? Well, you will be able to sue the landlord rather than your neighbour in nuisance if the infestation in the neighbour’s property is caused by disrepair or by one of the other things I have explained to you that might give the landlord liability. But if the landlord is not liable for the infestation in the neighbour’s house, then unless the cockroaches are getting to your flat through common parts, the landlord will not be liable in your home either, unfortunately.

I have dealt with other statutory duties in the notes so I will not go into great detail here. I will just remind you of Section 2(2) of the Occupier’s Liability Act 1957 “to take such care as in all the circumstances of the case as reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there.” So it follows that if either you are a tenant or you are the visitor of a tenant and you are coming to see the tenant and you are going through the common parts and a rat bites you and you get Weils disease as a result, you will be able to sue the landlord. However, if you are bitten within the tenant’s property you may have more of a problem unless you can, once again, show that the rat got there because of, for example disrepair.

Obviously, serious infestations make a property prejudicial to health so it is open to either a tenant or some other person aggrieved, they do not have to be the tenant, to bring a prosecution under Part III of the Environmental Health Act 1990. As with all of this, it is going to be a question of causation. Whose act, default or sufferance has caused the nuisance? In the building where I work at the moment there are mice, I have seen them in other office units within the building, but there are no mice in the units that we rent and the reason is that we are really scrupulous about not having food in the units; as a result we do not have a problem. So where it is a serious infestation you really do have to have the evidence, and I would say that should be from an Environmental Health Officer, that the infestation is as a result of the default of the landlord rather than the tenant.

I found, recently, the Prevention of Damage by Pests Act 1949. Camden Council seems to use this when there are rats or mice in a house. It can be used against either the owner or the occupier so we are back to causation again. I am not sure that it adds much to the Environmental Protection Act but I put it in anyway just in case you think it might.

There is the Housing Act 2004, I stand to be corrected if any environmental health officers here do not think that this applies but it seems to me that since a deficiency in the dwelling causing a hazard is covered by the Act I would have thought that poor maintenance or a want of repair within a dwelling that causes an infestation should be actionable under the Housing Act 2004. There is also The Building Act that give local authorities powers in relation to drains and sewers and since rats like sewers that seems like quite a useful thing to me.

The thing that you, particularly when you are advising on legal help and really do not have the time to do the detailed research on this, will be asked is can the tenant leave? We are asked this all the time by assured shorthold tenants who have signed a fixed term contract. You have to be very, very careful before you advise them that they can walk away. As lawyers you are the people who have to give correct advice; you cannot just give over-cautious advice and tell them that no, they cannot possibly leave. So you do have to give considered advice and you should sometimes advise people to leave but be aware of the two cases that I have cited in the notes. The most recent is Reichman and Dunn v Beveridge and Gauntlett but it only affirmed what was the case under White v Carter which is

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that a tenant who leaves a fixed term tenancy early cannot say that the landlord is under a duty to mitigate their loss. If you leave the landlord does not have to try and find a replacement for you. A landlord can just sit back on his hands and wait until the end of the tenancy and then sue the tenant for the rent for the whole term. On the other hand, if the landlord does rent the property out again, that is the point at which the tenant’s liability for rent ends.

So you do need to go back to your law about misrepresentation and you will remember that misrepresentation is a false statement that induces the tenant to enter the contract. Every single one of the words in that are words that there have been litigated upon.

The leading case on this, which I would like to tell you about, is an ancient case, Smith v Marrable, this is real Jane Austen stuff, 14 September 1842. Sir and Lady Marrable agreed a six week fixed term tenancy of a house in Brighton and those of you who know Brighton will know Brunswick Square, it is really elegant, and I am sure they thought they were going to have a lovely six weeks by the seaside. They moved in on 16 September 1842, two days after agreeing the tenancy, and on 17 September Lady Marrable complained to Mr Smith that the house was infested. Mr Smith did send someone round to attempt to eradicate the problem; I do not know what they did in those days about eradicating bedbugs but anyway they had a go. And that is interesting in itself because I have always thought with misrepresentation that you have got to rescind really quickly and if you do not, the right to rescind is lost. It is true that delay is a bar to rescission but in this case Lady Marrable allowed to them to make an attempt to cure the infestation but it was not successful. So by 19 September Lady Marrable had had enough, and I love this, a letter sent from 5 Brunswick Place, “Lady Marrable informs Mrs Smith that it is her determination to leave the house in Brunswick Place as soon as she can take another, paying a week’s rent, as all the bedrooms occupied but one are so infested with bugs that it is impossible to remain.” So please note, she paid another week’s rent, so once again I always thought that paying rent is fatal to rescission but she rennin this case, they found somewhere else to move and they were out by 22 September when they gave the key and a week’s rent to the plaintiff, Mr Smith, who then sued for the remaining five weeks’ rent. The judge, Lord Abinger said, “a man who lets a ready furnished house surely does so under the implied condition or obligation, call it what you will, that the house is in a fit state to be inhabited.”

Fundamental breach I am not going to talk to you about now; it is in your notes, similarly damages. What you need to know is that you are looking for a serious infestation and, by the way I did not mention this in Smith v Marrable, it has to be a serious infestation to render it unfit. I thought that any infestation would but no, I think you need to be a bit cautious there;

Damages, the cases are in your notes and you will see that tenants have been awarded £2000-£3000 per year.

Chair: Deirdre, thank you very much. I will now take questions for the speakers.

Haroon Sarwar, Blacklaws Davis LLP: A question to Deirdre, how have you found EHOs to behave when the landlord is actually a local authority?

Deirdre Forster: Well in the cases I have done we have used independent environmental health officers employed by the Health and Housing Group. I understand the difficulties with legal help on that but given that you may be able to bring nuisance proceedings in the County Court you may well be able to justify the cost of that under a certificate.

Nik Nicol, 1 Pump Court Chambers: I have a couple of points to make. Leading on from the last point, actually, environmental health officers from local authorities are not normally interested in their own property in inspecting it and enforcing standards because the law has to date been that local authorities are not supposed to exercise their powers to enforce housing standards against their own housing stock. That comes from the case of Cross v Cardiff. But that principle applies under the old legislation. I have got a case currently running, Hillaire v Islington in which I am arguing that the current standards under the Housing Health and Safety Rating system can be applied to local authorities' own housing stock, particularly if that stock is not run by the local authority but by an ALMO, which is the case with Islington. I will have to see how that case goes later this year.

Another point I wanted to make is in Deirdre’s handout it refers to lettings of furnished premises which started with Smith v Marrable, the case that Deirdre mentioned there. It always bothered me from the very first time I heard it why on earth furnished dwellings should have a special implied term that they should be fit for human habitation, what is so special about having furniture in the place that should

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make the difference? So I researched the point and although furnishings are mentioned, as in one of the quotes Deirdre highlighted, that is not the correct principle. If you actually look at the cases the principle is if the property is intended for immediate occupation, of which the existence of furniture is evidence that it is so intended for immediate occupation, but the presence of furniture does not necessarily mean that. Now the logic of this is that, as we all know, all social tenancies are intended for immediate occupation. You only get protection if it is your sole or principal home and no local authority is going to let a property to you on the basis that it is your second home. So if social tenancies are always intended for immediate occupation, in my opinion, under the principles which started with Smith v Marrable, Wilson & Finch-Hatton, which is also in Deirdre’s handout is the best case, under the principles established in those cases all social tenancies have to be fit for human habitation at the commencement of the tenancy. It is not an implied term which applies throughout the tenancy; it is only at the commencement of the tenancy but they do have to be fit for human habitation. What fitness for human habitation means, or possibly, is as widely defined under the Housing and Health Safety Ratings system but certainly covering traditional matters such as infestation and condensation damp, if it is sufficiently serious. I would therefore suggest people start exploring this. I wrote an article for the Journal of Housing Law about ten years ago on this (Landlords' Obligations To Make Fit For Habitation: Is McNerny Wrong? [1998] JHL 103). I would suggest that it is something which could be made a lot more use of for practitioners in the future.

Andrew Brookes, Anthony Gold Solicitors: A question for Stephen and the Jackson v JH Watson Property case. In his last slide on the Jackson case there is a quote from the judge talking about tenants of local authority housing not negotiating their terms of tenancy. Of course I am talking about Parliament needing to redress any imbalance; the unfair terms in Consumer Contract Regulations probably would apply in that case. Is it possible the judge overlooked that and would a different decision have been reached if the claimant had been a local authority tenant?

Stephen Evans: At the time that Lord Millett was dealing with Southwark v Mills at that stage there had not been the case which had held that the Regulations applied to tenancies so of course he would not have had that in mind at the time of the House of Lords decision in Baxter v Camden, Southwark v Mills. It is certainly arguable that the problem really is that this is a Cavalier v Pope point. Although Jackson v JH Watson was to do with nuisance, Cavalier v Pope is applied in Jackson v JH Watson. We are going back to what Deirdre said about the Victorian case whereby essentially there is no law, the case said, against letting a tumbledown house and therefore I think it is likely to be the situation that what Lord Millett said here is going to stand.

Nik Nicol, 1 Pump Court Chambers: Just as an aside, I wonder whether one of the difficulties is that, of course, the point here is that there are no terms at all so there are no unfair terms to which you can attach that legislation.

Tracey Bloom, Doughty Street Chambers: Deirdre, I just wanted to ask you about funding in EPAs because I know it is a kind of moot question. Ten years ago we were all going to court quite busily in the Magistrate’s Court and then I think after a few cases, one of which I was involved in, where solicitors found themselves losing out very substantially when these cases failed, solicitors became extremely anxious about prosecuting these cases, given that they were doing them under CFA. I wonder how to deal with these cases now and whether there is a way of getting round the problems?

Deirdre Forster: There are still prosecutions going on, certainly in Southwark and Lambeth under the EPA. I have not done one in years but that is because whenever I have come across a case of dampness or infestation I have been able to plead nuisance and do it in the County Court and no-one would do an environmental health prosecution where they have a choice between a County Court case and prosecuting because of the burden of proof. I think one of the things that frightens solicitors off EPA prosecutions was that solicitors were being put in the witness box and cross-examined about what their arrangements were with their clients about payment. To some extent conditional fee arrangements have meant that that is a thing of the past because you can produce a signed agreement, it is all above board, there is no nonsense about telling a client that the indemnity principle will not apply because you have got a CFA. I think it is a matter of knowing your enemy; it is a terrifying thing to fight a EPA with the burden of proof against you on a five day trial but on the other hand, if you know that your local authority does not do that and usually pleads guilty, I would certainly still do it.

Chair: I have a question of my own for the panel relating to damages and the different ways in which County Courts can make their awards and in particular whether County Courts have shifted from using the old tariff measure to using, as it were, a percentage of rent measure when assessing general

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damages. The reason why I ask the question is that, of course, rents, particularly in the private sector, are so much higher now that the percentage, even if you only get 20% of the rent, it is usually higher than your inflated tariff measure. So my first question is to colleagues on the floor whether or not there is any information as to what judges are doing, have there been any recent awards that anybody is aware of where the percentage measure has been used? If there is, I would be grateful to know which local courts they are because that is quite useful local information; it makes a big difference to your negotiations.

Contributor from Anthony Gold Solicitors: Well it is over the last two years, two assessment of quantum hearings one at Bromley, one at Central London and both on a percentage basis and expressed as such. More recently one at Lambeth, a trial, which I am going to hold back details on until I know whether we have got permission to appeal but was notionally on a percentage basis but not in any way that made sense.

Chair: Have the awards been higher as a consequence?

Contributor from Anthony Gold Solicitors: In the first two they were I think quite significant awards; in the most recent one, no.

Stephen Evans: I tend to find that judges do like a percentage basis but take this scenario. You may have some experience, what about temporary accommodation under Part IIV where you are £300 a week? If I suggested to the judge, oh we have got 50% diminution of value of here they would baulk at it so I think there is always a bit of reining in by the judiciary. They will look at it and they will think, weighing in the balance they will apply then a reduction or a global approach so a percentage basis does not always work,.

Viv Gambling, Lambeth Law Centre: Regarding the Jackson v JH Watson case, I wondered what happened to the principle of business efficacy and implied terms. I remember having a case ages ago where it was a tenancy which pre-dated the Rent Act, I think, and that was used to imply a term where there was no obligation on the landlord, no obligation on the tenant and, presumably in the Jackson v JH Watson case, the long leaseholder does not have the right to start to tamper with the light fittings outside their flat so it is left in the situation where nobody has the obligation. The leaseholder does not have the right to repair which seems absurd.

Stephen Evans: Well I totally agree that the difficulty with implied terms is that you have got to put it within one of the simple pigeon-holes. Of course it could be implied in order to give business efficacy to the agreement but on whom do you put the obligation? That is the difficulty. Really we are going back to the situation of the law saying in effect you are a long leaseholder but you have bought this property, the principle caveat lessee applies as it does caveat emptor with anyone who purchases premises. So I see your point but that is the difficulty.

Chair: Deirdre, do you have anything to add?

Deirdre Forster: Yes, I think it is the Adami case which is in my notes, it said that Barrett v Lounova, the business efficacy case was decided on its own facts and in effect they said that courts are going to be very slow to imply further terms.

Chair: The case you are referring to, I think, is Liverpool CC v Irwin which put aside business efficacy for the maxim of necessity, which was not particularly helpful but did imply a term.

Terry De Lury, National Heating Consultancy: It is the point about no duty on the landlord to lay pipes and tanks. My understanding of the Liverpool CC v Irwin case was that if the installation was not properly and correctly installed in the first place it was a breach of Section 11. In that situation every code of practice since 1936 has required people to lag and insulate pipes and tanks. The European Code of Practices says the same thing and the British Standard 5449 says it. I do not understand in those circumstances why a landlord is not therefore liable for lagging pipes and tanks under Section 11 of the Landlord and Tenant Act?

Deirdre Forster: An unlagged pipe is still in proper working order and as such it is not in disrepair so the fact that it has been installed in breach of building regulations is not going to help you unless you can tack it on to Section 1 of the Defective Premises Act 1972, which does require any works of construction should be done with proper materials, which would include lagging.

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Terry De Lury, National Heating Consultancy: No I mean Section 11 and I am referring to Liverpool v Irwin as I understood it gave authority to the fact that it was never properly installed in the first place.

Deirdre Forster: Well, for a start Liverpool CC v Irwin, as I understand it, was a common parts case so that is our first problem. But secondly, I do not see that it makes it disrepair.

Stephen Evans: I fully agree with Deirdre. For something to be out of repair there has to be a physical deterioration. There is a slight qualification to that in relation to pipes. There is a case called Bishop v Consolidated London Properties from 1920 which was a dead pigeon in a pipe and that pipe was held to be in disrepair. Although the pipe itself was not physically damaged it was choked by the body of the dead squab and therefore it was held to be out of repair. So there has to be a physical deterioration in the first place.

Chair: I would now like to bring that part of the meeting to a close and would be grateful if you could show your appreciation both to Stephen and to Deirdre. I would now like to ask Robert Latham to talk very briefly on the Jackson Report. He has provided a handout and it is particularly appropriate to hear from him given that it deals with disrepair to an extent.

Robert Latham, Doughty Street Chambers: The Jackson Report was published last Wednesday, it extends to 560 pages and this handout seeks to summarise it. Can I apologise for two things, firstly that in beaming this round London the formatting seems to have gone awry, secondly, it is a paper I drafted primarily for the Bar Civil Legal Aid Committee and you will see certain references to barristers in the Bar and if you substitute lawyers I think it probably makes equal sense.

Now if I can go through it very quickly, it does seem to me that Jackson is very much going to dominate the Civil Procedure Agenda for the next year. I think we need to see the proposals in the context of the current recession where we are going to see cut-backs in Legal Aid over the next three years and we are going to see the Government taking steps to reduce civil litigation costs, whoever is the Government after May. The headline recommendations are in Section 1 and I think the extent to which these proposals get implemented really depend upon how personal injury practitioners respond because the key proposals are that in future no longer should success fees or after the event insurance be recovered against an unsuccessful defendant. There are two offsets for that; firstly that general damages should be raised by 10% and, secondly, that there is this concept of one-way cost shifting which I will come on to in due course.

Can I say immediately that when we come on to the housing and public law sections it does highlight the importance of HLPA and the Bar Civil Legal Aid Committee making representations because in the housing section in particular there are numerous references to HLPA’s submissions which have been endorsed and I think this is one of the rare consultation processes where we have actually been able to make some quite significant inroads into what has been recommended.

In the glossary little 2, you will see this lovely little phrase, I think it is mindless, “middle income not eligible for legal support” and we will come on to the mindless in due course. Jackson does not deal directly with legal aid but he does deal with the respective contentions of HLPA members and the Legal Services Commission on the level of fees for housing work. But I would highlight 3.2 which I think is very important, where you do have litigation involving public authorities, and we do need to recognise that most civil legal aid, whether it be clinical negligence, housing or JR, tends to be against public authorities, in fact legal aid is an extremely cost effective way of resolving disputes. Section 4 deals with CFAs, Section 5 contingency fees, Section 6 indemnity principle, which I will go over fairly quickly. Section 7, it is suggested that more people should take up before the event insurance but I do not think that is really going to benefit the clients who we act for.

Can I stop at Section 8 for a moment, one way cost shifting. What Jackson is proposing is that in certain classes of claim there should be something equivalent to Section 11 of the Access to Justice Act, namely that even if a claimant fails they should not be liable for costs unless it would be reasonable to make them contribute to the costs of the successful defendant having regard to all the circumstances including (a) the financial resources for parties for proceedings and, (b) their conduct in connection with the dispute to which the proceedings relate. It is suggested that one way cost shifting should apply to personal injury claims, clinical negligence and judicial review and if you go to the housing section, also housing disrepair. It does seem to me it makes it much more attractive for a disrepair action to be brought without legal aid if you do have that benefit of one way cost shifting and also I think it does open the way to bringing judicial reviews without the benefit of legal aid, because it does significantly reduce the risks.

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Section 9, which is really drafted for the Bar, there are certain people within the Bar who are rooting this proposal for a contingency legal aid fund which is supposed to be a self-financing litigation fund and, quite frankly, I do not understand how it works and our concerns are shared by the Bar’s Civil Legal Aid Committee. But you might like to look at that Section because it is going to be very much on the agenda over the next twelve months.

Section 10, I think, is very important, fixed fees for fast track cases and I will come on to that again when I deal with Section 11 on housing law.

If I can park on Section 11 and highlight the issues raised, HLPA and Jackson and everyone is saying why does the Government not introduce the Rented Homes Bill? There is a very well aimed kick at the Tenants’ Services Authority that it failed to make any reference to the Rented Homes Bill in its discussion paper, Building a New Regulatory Framework. I would also highlight that we have got the pending consultation on that new regulatory framework which we will also be responding to over the next six weeks.

11.2 was a HLPA proposal; where a landlord could use the PCOL procedure to issue possession proceedings but decides to issue manually, they should only be entitled to recover the lower issue fees so that is a success.

11.3, if we go back to last January you may remember when Nic Madge came and talked about Article 8 and Docherty, he proposed that there should be a protocol where a public authority seeking possession against an occupant who does not have security of tenure, basically the landlord should notify the occupant that he is minded to bring possession proceedings and give the occupant the opportunity to bring any special circumstances to the attention of the landlord which the landlord would then have to address before issuing the claim. That is being proposed as a possible way forward and HLPA’s specific comments to protect vulnerable tenants were also taken on board.

11.4 Jackson is recommending that one way cost shifting should extend to disrepair claims.

11.5 fixed costs for disrepair cases, again I think Viv Gambling may wish to add something from the facilitations she attended; also Ed Fitzpatrick and James Bowen attended that session last autumn. There is a Professor Fenn who is trying to come up with recommendations for fixed fees. He has not got very far from housing cases but it seems to me that we are going to get fixed fees for fast track housing cases and it is absolutely essential that we are there arguing that those fees are realistic. I do highlight that Jackson has noted that it is important the fees will not be set at a level that will exacerbate the problem of advice deserts in certain areas of social need.

11.6 a very modest proposal on Housing Act appeals, namely that the CPR practice direction be amended with regard to disclosure. He did not take up HLPA’s proposal that we needed some wider ranging protocol to ensure that there was much greater consistency on the directions and the manner in which County Courts deal with Housing Act appeals.

11.7 I think is something which has been raised and should also warm our hearts, consultations should be carried out, recommends Jackson, on the proposal that where a housing claim is settled in favour of a legally aided party that party should have the right to ask the court to determine which party should bear the costs of the proceedings. We proposed this because I am sure you are all aware of cases where RSLs, in particular, say we will agree to a suspended possession order provided there is no order as to costs or we will withdraw a Housing Act decision providing that there is no order as to costs and that, inevitably, puts the conflict between the client who gets his successful outcome and the HLPA lawyer who wants favourable costs order. What Jackson is recommending is our proposal that there should be consultation on the right to have this determined by a judge should be taken forward and I think if there is a consultation on that we should push very hard.

Section 12 I would also highlighted, Jackson is recommending qualified one way cost shifting in JR.

12.2 the Boxhall Guidelines should be amended so that where a claimant has complied with the Protocol and a defendant settles the claim after rather than before the issue of proceedings, conceding any matter material to the relief claim the normal order should be the defendant pays for claimant’s costs. So again it is a proposal which HLPA has been pushing and has been taken on board.

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Section 13 a bit of wishful thinking, Jackson says there should be no further increase in civil court fees, well, well, well. He is also saying there should be no further tightening of eligibility criteria or restrictions on scope, well, well, well. I think all we might get is a cost council which will at least mean that costs will be reviewed on an annual basis.

So 860 pages, I am going to stop now but I hope I have whetted all your appetites and as you get into bed tonight you will all have downloaded that absolutely fascinating report.

Viv Gambling, Lambeth Law Centre and Chair of HLPA: It is not only that number of pages because I think where I started off reading the report or else on the website it says that this should be read in conjunction with Lord Jackson’s interim report which extends to about 600 pages so I think that adds up to over 1000. But thank you, Robert, for producing such a detailed and helpful summary. It is really helpful because I think lots of people in this room will not have time to read the whole report. I find the report very exasperating as regards housing cases because while it is nice to be quoted and acknowledged and have our response recognised, the bottom line is that the report proposes fixed costs in housing disrepair cases, fast track cases. I do not think any real rationale is put forward for that other than approximately twelve years ago Lord Woolf thought it would be quite neat if there were fixed costs in every type of fast track case. I think it is difficult to know where it goes from here. I think the immediate problem is that HLPA, as an organisation, has a tactical decision to make about the fact that Professor Fenn has been asked by Lord Justice Jackson to come up with figures for fast track housing disrepair cases, indeed possession cases as well but nobody has done any work on that so far, by the end of March, which is only two months’ away. Professor Fenn, what has he done so far? Well he has sent me an email asking whether HLPA can help provide information about these cases. I think he has done the same with the landlords’ representatives. I believe he is contacting the Legal Services Commission but nobody really has similar detailed information comparable with the information that is being used for personal injury cases, i.e. a breakdown of how much a case has cost up to allocation, up to listing questionnaire and then the next stage to trial. I think the report completely ducks the issues of disrepair cases, on repairs, what impact repairs have on the costs of the case so there is no information on that. As I say, we have the decision whether we sit back and simply say the information is not there, we may well say to come up with any useful information is impossible by the end of March but this is what we think you ought to do if we think that fixed costs are inevitable. So I would be very pleased to hear from anyone who has any thoughts on this because, as I say, it is quite an important tactical decision and something that we will discuss at the HLPA Executive Committee meeting next week.

Thinking ahead, I think if fixed costs do come in two obvious tactical things that people will be trying to do is to put your case into the multi-track and also I think it will lead to much greater use of Part 36 offers. The proposals say that the indemnity principle which applies to successful Part 36 offers will not be affected by fixed costs. I hope that is clear. In other words you can escape fixed costs if you are successful in making a Part 36 offer and beating it or meeting it, so that where we are at the moment.

If that is not bad enough, we also responded on experts’ fees and just to say briefly that the Ministry of Justice is going to respond on experts’ fees in civil cases in February. While I have got the mike, just on legal aid, I think revised procurement plans are being published next week and I hear that the Legal Services Commission has been told to cut costs and they might reduce the number of matter starts available in the procurement areas, i.e. each local authority. But we are fighters, we are all here so I would like to hear if anyone else has got any suggestions, particularly on the fixed costs.

David Watkinson, Garden Court Chambers: I was asked by our Chair this evening to update you on the state of play with Article 8 and public law defences while there are still fighting housing lawyers left in England and Wales. Article 8 in the domestic courts, Pinnock which is concerning public law defences in demoted tenancy cases is listed for hearing in the United Kingdom Supreme Court between 5-8 July this year. Before that, however, there are four appeals being heard in the Court of Appeal in the week beginning 15 March 2010 and those concern public law defences in introductory and non-secure tenancy cases and they are headed by a case called Birmingham City Council v Frisby. Now in the European Court, I wish I could be more definite as to when K v United Kingdom is going to have its judgement delivered than I am going to be. The most recent letter, and it is at least this year, from the European Court is that a hearing is expected in early 2010, now the hearing is a bit of a surprise because they have been dealing with it in writing and I think what they really mean is the judges are going to get together about it early in 2010. However, there is a bit of an indication as to what they might be doing; in the current LAG there is a report of a case Powlic v Croatia and once again we have a country’s domestic law which provides for an unlawful occupier to be evicted and

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there is no defence and the European Court finds that that is an Article 8 violation on the same grounds as they have in McCann v United Kingdom and the earlier case of Kosic v Croatia. But they also add in their judgment in the Powlic case, “as previously held, the Court does not accept that the grant of the right to an occupier to raise an issue under Article 8 would have serious consequences for the functioning of the domestic systems or for the domestic law of landlord and tenant.” Now I think that is a reply to the stringent criticisms of McCann v United Kingdom that were given by our House of Lords, as it then was, in Docherty v Birmingham City Council. The European Court was supplied with the judgements in Docherty v Birmingham City Council by the UK Government as part of the written representations in K v United Kingdom. So that is it with K v United Kingdom.

With regard to consultation papers, there is one from, I think it is the Administrative Court Users’ Group but it is pretty shy as to who it is coming from, and it is on the Administrative Court and improvements to judicial review procedure. It makes a number of proposals that have been going around for a little while. There are guidelines as to what constitutes immediate, urgent and expedited applications with timetables for the court dealing with them. There is provision for the claimant to reply to the public authority’s acknowledgement of service and there are revised time-scales and better time-scales for submission of trial bundles and skeleton argument. What is not in it, which has also been around for a while, is provision for an oral hearing of a refusal of application for interim relief when that refusal is on the papers and there has been no determination on the application for permission itself and nothing in relation to dealing with costs issues when that is the sole issue in the case by written representations. But, of course, this is consultation so those points can be made.

Then the other paper is mortgages, power of sale and residential property from the Ministry of Justice; that is closing on 28 March of this year. This is about a proposal to require mortgage lenders to obtain a court order or the consent of the borrower before repossessing and selling residential owner-occupied homes. Now again, this is not what has been trailered; a consultation about requiring lenders to go to court for possession orders against borrowers or their tenants in every case. Nor it is about an overhaul of mortgage possession law which, again, is something which has become more and more to the fore. However, this is a consultation so those points can be made. There are two other consultation papers, one already mentioned by Robert, that is the Tenants’ Services Authority’s A New Regulatory Framework for Social Housing in England and that closes on 5 February of this year. What it is about is what is says on the tin. And the fourth paper is from HM Treasury and that is Mortgage Regulation, a Consultation and that closes on 15 February and that is essentially about financial regulation and there is probably a point or two worth making.

The last three papers that I have mentioned you can find on the Garden Court website if you go to the Housing Law E-bulletin and the Administrative Court paper you will find next week at the same place. Thank you very much.

David Ashogbon, Shepway CAB: There is a recent decision, I do not know if it would be of any help to any housing practitioner, about non-compliance with pre-action protocol in mortgage cases. The Court in Ashford actually dismissed a possession claim filed by G Money. We do not know yet if G Money are going to apply to appeal against this decision but this happens to be the first in our local area where the Court would dismiss an action for non-compliance with pre-action protocol so I just wanted to inform you that they have.

Chair: That is very useful local knowledge. The date of the next meeting is 17 March and the meeting is entitled: 'O Brother, Where Art Thou? Possession Claims and the Elusive Defence'.

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