GAT v WA

15.6.23

Citation

(Wandsworth County Court, DJ Parker)

The Defendant had been the Claimant’s tenant for over 10 years, having signed fresh fixed term agreements every year for the first 8.

The Claimant landlord claimed possession for rent arrears on Ground 8 of Schedule 2 to the Housing Act 1988 (mandatory rent arrears ground). The Defendant tenant defended the Claim on the basis that:

• The Claimant’s pleadings were defective,
• Any rent arrears claimed had been repaid
• In any event, such arrears as there were had been extinguished by the Defendant’s counterclaim.

Judgment on the Counterclaim was entered in default of a defence.

The Claimant also failed to comply with directions to file and serve a witness statement which complied with Practice Direction 32. His witness statement had been written only in English, yet expressly stated that his English reading and communication skills were almost non-existent. It also referred to and tried to exhibit without prejudice correspondence. At a directions hearing the District Judge had given him an opportunity to remedy his defects and permitted him to rely on a compliant witness statement, but he failed to comply with an order in respect of filing and serving that also.

At trial, District Judge Parker dismissed an oral application for relief from sanctions in respect of the further witness statement. The breach was serious, the Claimant had been given an opportunity to rectify an earlier breach, had given no good reason for not doing so until shortly before trial nor made the application promptly and there were still problems with the new statement. His statement was not admissible.

Deposit Penalty payment 

The Court ordered the Claimant to pay the maximum 3 times the deposit in relation to each of the 8 fixed term agreements (totalling £23,500)

• the Judge accepted the Defendant’s argument that liability in respect of each breach had been determined by the default judgment.
• A new fixed term tenancy agreement had been entered into for 8 years and the deposit had not been protected in respect of any of them.
• No attempt to protect it was made until after the Defence and Counterclaim had been served and by that point, there was no longer a deposit being held because the parties had previously agreed to offset the deposit against earlier missed rent payments.
• The Claimant’s culpability was high and there was no mitigation: he purchased the property specifically as an investment and was to that end a professional landlord, the written tenancy agreements specifically drew attention to the deposit protection, the legal requirements had been in place throughout the period of liability, even the late attempt at protection hadn’t provided the complete prescribed information, the Claimant chose not to instruct competent letting agents, instead relying on his brother. Claimed limitations in the Claimant’s English was not in this case enough to justify the behaviour.

Damages for disrepair

The Defendant was awarded £25,968.25 in damages for disrepair since 2015, which included Simmons v Castle uplift and special damages of £440.00:

• General damages represented 20%, 25% 35% and 45% rent diminution for periods of varying severity of disrepair.
• The premises was a 1-bedroom flat with kitchen, living room and bathroom.   Problems included:
  • defective pipework and drainage with regularly blocking sinks for 8 years;
  • intermittent leaking bath pipes for 4 years;
  • inaccessible windows, lack of an extractor fan;
  • damaged wall and ceiling plaster and mould in the living room, bedroom and bathroom following a leak in late 2020;
  • broken bathroom pullcord; lack of heating cylinder for 2 weeks;
  • lack of boiler for 2 years;
  • damaged flooring in the kitchen;
  • faulty cooking equipment; and lack of smoke/CO alarms.

A Preliminary Improvement Notice and an Improvement Notice had already been served by the local authority but not complied. The flat had been unpleasant, smelly and unsightly.For some periods the tenant had been without heating or hot water or been unable to properly cook, affected key rooms. The Court also took into account that some periods arose during the Covid-19 pandemic when most people were confined to their homes for much of the time. The expert had also opined that the premises was unfit for human habitation.

 Outcome

Total money judgment against the Claimant was £49,733.42.  An order for specific performance was also made requiring work set out in the expert’s report and improvement notice to be commenced within 14 days.

The possession claim was dismissed. The Court was not satisfied that the Claimant had proven there were any arrears outstanding.

The Claimant was ordered to pay the Defendant’s costs of the claim and counterclaim, and to make payment on account of costs in accordance with CPR r.44.2(8).

The Claimant’s application for permission to appeal was refused.

Eleri was instructed by Amanda Ford at TV Edwards LLP.

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