English Churches Housing Group v Shine [2004] EWCA Civ 434

[2004] EWCA Civ 434

Case No B2/2003/1356

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SHOREDITCH COUNTY COURT

HIS HONOUR JUDGE COTRAN

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 7 th April 2004

Before

LORD JUSTICE KEENE

LORD JUSTICE WALL

Between

English Churches Housing GroupAppellant

Avrom ShineRespondent

Mr Robert Bowker (instructed by Messrs Marsons) for Appellant

Mr Avrom Shine (In Person) for in person

Hearing Hearing date: 20 th February 2004

Judgment

Introduction: the nature of the appeal

[1]This is the judgment of the court to which each of its members has contributed.

[2]The two principal questions raised by this appeal are(1) the basis upon which and

(2) the method by which the county court should assess the amount of damages payable by a landlord to a tenant occupying premises under a Housing Act 1985 (HA 1985) secure tenancy for breaches of the landlord's repairing covenants implied in the tenancy agreement by section 11 of the Landlord and Tenant Act 1985 (LTA 1985).

[3]English Churches Housing Group (the Landlord) is a charity and a Registered Social Landlord. It appeals against an order made by His Honour Judge Cotran sitting in the Shoreditch County Court on 10 June 2003 in proceedings in which the Landlord was the defendant. Mr Avrom Shine (its tenant and the Respondent to this appeal), was the claimant. Mr. Shine occupied, and continues to occupy premises now known as Flat A, 35 St Matthews Row, London E2 6DT (the premises) pursuant to a tenancy agreement dated 13 April 1987 and made between himself and the Landlord's predecessor in title Church Housing Association Limited. It was common ground that Mr. Shine has at all material times occupied the premises as a secure weekly tenant within HA 1985.

[4]Mr. Shine is unemployed and lives on benefit. He has throughout acted in person, and appeared in person before us. His particulars of claim (which we set out as part of the chronological sequence of events at paragraph 31 below) were home made. They did not identify a cause of action, but have throughout been treated as a claim for damages under LTA 1985 section 11. Although by the time of the final hearing the pleadings on both sides had been amended several times, and the Landlord's Defence had become a Re-Re Amended Defence and Part 20 Counterclaim, the Landlord's liability to pay damages to Mr. Shine was not in contention, and the only substantive issue for the judge to resolve was the amount of those damages.

[5]The judge awarded Mr. Shine damages totalling £19,000 covering a period of approximately seven years from May 1996 to 9 June 2003. As Mr. Shine was in person and did not claim costs, the judge did not make an order for costs in his favour. He did, however, refuse the Landlord's application that it should be awarded the costs reserved by the judge at the conclusion of a number of interlocutory hearings. He also refused the Landlord's application for permission to set off against the damages of £19,000 a sum of £1,500.00 representing an assessed sum of costs awarded to the Landlord by Hart J on an interlocutory appeal by Mr. Shine to the High Court on 7 March 2003. The judge dismissed the Landlord's Part 20 counterclaim for possession of the premises. As our recital of the facts will demonstrate, nothing turns on the latter order.

[6]Finally, the judge refused an application by the Landlord to make an order for costs in its favour relating to the additional costs incurred in the proceedings as a consequence of what it argued was Mr. Shine's unreasonable conduct of the litigation, which had resulted in a wholly unnecessary proliferation of documents, and the provision of numerous witness statements, skeleton arguments and court attendances, all of which, the Landlord argued, should have been unnecessary.

[7]The judge refused the landlord both permission to appeal, and a stay of execution on the order. However, the latter was ordered by Simon Brown LJ (as he then was) on 19 June 2003, and permission to appeal was granted by Auld LJ on 24 September 2003.

[8]The landlord attacks the judge's order in three principal respects. Firstly, it submits that the award of £16,000 representing damages for the period May 1999 to June 2003 is manifestly excessive given the circumstances of the case. We give our conclusion on this argument at paragraphs 104 to 121 of this judgment.

[9]Secondly, the landlord attacks the judge's refusal (without giving any reasons) to allow the award of costs in the sum of £1,500.00 by Hart J on 7 March 2002 to be set off against the award of damages. Our conclusions on this point are at paragraphs 136 to 138 below.

[10]Thirdly, the landlord argues that the judge was plainly wrong to refuse to revisit post judgment the numerous orders for reserved costs made during the course of the proceedings. The landlord argues that at least five of the orders should have resulted in orders for costs in favour of the landlord, notwithstanding the award of damages in Mr. Shine's favour. We identify the orders in question and examine the argument in relation to them in paragraphs 130 to 134 of this judgment.

[11]Finally, we deal with the Landlord's argument that the judge should have made an award of costs to reflect the additional and unnecessary costs which the Landlord was obliged to incur as a result of Mr. Shine's unreasonable conduct in the litigation at paragraph 135 of this judgment.

[12]Mr. Shine's case was very simple. The Landlord is and was corrupt (a word which occurs regularly in his applications to increase the level of his damages). It is also very rich. He is very poor. The Landlord had behaved very badly; he had done nothing inappropriate. The judge was entitled to make the award he did. We examine this and the other arguments open to Mr. Shine in paragraphs 139 to 145 below.

The unfortunate history of the proceedings

[13]It is very clear to us that what should have been a readily identifiable and triable issue between these two parties became unnecessarily complex. In its fundamentals, this is a very simple case. Mr. Shine's flat was, by common consent, in a poor state of repair. Quite how long it had been in that state, and quite what the Landlord was told about its condition by Mr. Shine were straightforward issues of fact for the judge to decide. The Landlord accepted its obligation to repair. However, it was clear from the evidence of the jointly appointed expert that Mr. Shine had to vacate to enable the repairs to be undertaken. He did not do so. As a result, the proceedings themselves were extraordinarily protracted.

[14]As the chronology demonstrates, Mr. Shine issued his particulars of claim on 5 January 2001. Final judgment was not given until 10 June 2003, some two and a half years later. There were numerous interlocutory applications, largely relating to attempts to ensure that Mr Shine temporarily vacated the premises so that the repairs could be effected. There was one interlocutory appeal by Mr. Shine to the Chancery Division following an order by Judge Cotran striking out Mr. Shine's claim. The trial itself took place over four days, spread over the best past of a year - 15 July 2002, 28 October 2002, 9 and 10 June 2003. The result is that the Landlord's costs (excluding the costs of the appeal) amounted to £40,000 as at 21 January 2003, the date of the Re-Re-amended Defence and Part 20 Counterclaim, and have increased substantially since. This level of costs is wholly disproportionate to the issues in the case.

[15]The protracted and unduly complex nature of the proceedings in the court below has had a knock-on effect on this appeal, as the length of this judgment demonstrates. It is, unfortunately necessary for us to examine how the unhappy state of affairs we have identified came about. In order to do so, we have to set out the history of the matter in some detail.

[16]Our task is, however, eased to the extent that the landlord does not challenge the award of £3000 made by the judge in relation to the period mid 1996 to mid 1999. Counsel for the Landlord, Mr. Bowker, helpfully further sub-divided the remaining period from mid 1999 to June 2003, and we deal with his submissions on this aspect of the claim in paragraphs 74 to 77 below.

The facts

[17]The tenancy agreement is dated 3 April 1987. It is expressed to be a secure weekly tenancy commencing on 13 April 1987. It contains standard form covenants by the landlord to keep the structures and exterior of the property in good repair, and to keep in good repair and working order any installations provided by the landlord including basins and baths, electrical wiring, water heaters and fitted fires. The landlord covenants to take reasonable care, to keep the common entrances, halls, stairways, lifts, passages, rubbish chutes and any other common parts including electric lighting and heating clean and in reasonable repair fit for use for occupiers and visitors to the property. Mr. Shine covenants to report to the landlord any disrepair or defect for which the landlord is responsible in the structure or exterior of the property or any installation therein or in the common parts. Mr. Shine also covenants to keep the interior of the property in good and clean condition and to decorate all internal parts of the property as frequently as is necessary to keep them in good decorative order.

[18]The copy of the tenancy agreement in our papers does not identify the amount of the rent. Mr. Bowker, however, based his submissions to the judge on the fact that the rent on 2 May 1995 was £40.75 per week and was increased from time to time thereafter. For the purposes of his submissions, Mr. Bowker worked on a figure for the average rental over the period from 1995 to 2003 of £50 per week. We do not understand Mr. Shine to dissent from that figure.

[19]From the documents available to us, it appears that Mr. Shine made complaints about the state of the premises on 11 August 1995 and 13 November 1996. Thereafter, there do not appear to be any complaints until 3 March 1999 when Mr. Shine wrote to the rent officer seeking the registration of a lower rent on the grounds that: - structural defects and dampness have been left unattended for twelve years despite bringing the matters to the attention of the landlord.

[20]On 4 May 1999 Mr. Shine wrote a further letter of a complaint. Nothing, however, appears to have happened until 1 September 2000, when two of the landlord's representatives visited the premises. The evidence of Martina Rowe, one of the Landlord's Service Delivery Officers was that the premises were considerably affected by damp and that the floor in the bathroom was all but rotted away and clearly in a very dangerous state. Ms Rowe and her colleague discussed their concerns with Mr. Shine and advised him that they thought it appropriate to arrange for a technical inspection to identify the probable cause of the damp and also to make urgently needed repairs to the bathroom and Mr. Shine's bedroom.

[21]Ms Rowe says she visited again on the following day, but failed to get any response from Mr. Shine. She then sent an Email to one of the Landlord's technical officers, asking him to arrange for the property to be inspected and for a Schedule of Works to be compiled.

[22]On 18 October 2000, Ms Rowe wrote to Mr. Shine informing him that Mr Rankine, a technical assistant, would be inspecting the various properties in St Matthews Row on 26 October 2000 and wished to inspect Mr. Shine's property between 11.00 and 11.30am. She asked Mr. Shine to ensure that he was at home in order to give access.

[23]Unfortunately, when Ms Rowe and Mr. Rankine attended the premises on 26 October 2000, there was no response, and they did not gain access. They had a similar experience on 1 November 2000.

[24]On 13 November 2000 Ms Rowe and Mr. Rankine were successful in gaining access to the premises. Mr. Rankine formed the view that it would be necessary for Mr. Shine to move out temporarily to ensure that the works could be carried out without any risk of injury to Mr. Shine. This was put to him. Mr. Shine's reaction was a letter dated 30 November 2000 to the Landlord complaining about the condition of the property and the Landlord's neglect of its obligations. He described the building as structurally unsafe and unhealthy. He pointed out that there were a large number of repairs to be carried out and identified the following as urgent: -(a) the rotten floor in his bathroom which he had been instructed by the landlord's representative not to use and which had been caused by a leak going on for many years and

(b) the presence of rats in the basement.

[25]In the same letter, Mr. Shine complained that in nearly fifteen years the landlord had never done any repairs or maintenance and that the property both inside and out was in a disgusting state. He asked for somebody to come and shore up the bathroom, to remove the bath and install a shower. He also sought the intervention of a health officer to stop the rats. He made it clear that he would claim compensation for the unnecessary stress, anxiety, and suffering and asked that the matters contained in his letter be attended to within the next few days.

[26]On 4 December 2000, Ms Rowe replied, pointing out that the necessary repairs were quite extensive and required the property to be empty and that it would be necessary for Mr. Shine to move to alternative accommodation whilst they were done. She invited Mr. Shine to contact her as a matter of urgency to discuss the matter.

[27]On 6 December 2000 Mr. Shine replied stating that there were no repairs, which necessitated him vacating his home. He asked for a schedule of repairs. Most of the repairs, he said, were on the outside and his principal concern was the repair to his bathroom. He said there was no dry rot. He said that it would be very easy for a workman to call to remove the damaged floorboards and replace them, and asked that the works be carried out within the next few days. He made it clear that he would not be leaving his home. He said that he was aggrieved by what he described as the "negligence and persistent fraud" of the landlord. He wanted something done and some financial compensation.

[28]On 13 December 2000 the Landlord's operations director wrote to Mr. Shine stating that she had asked the Landlord's technical officer to detail the repairs that were required, along with an explanation as to why it was necessary for Mr. Shine to move out for the work to be done. She made it clear that if there was a way in which repairs could be done with Mr. Shine in occupation, the Landlord would be prepared to allow him to stay.

[29]That letter crossed with a further letter from Mr. Shine dated 13 December 2000, in which he criticised the fact that the Landlord had throughout the period of his occupation sought increases in rent for work that had never been done. He described the landlord as "defrauding" him to an amount £260.00 per annum for a period of ten years - a total of £2,600.00. He asserted that the Landlord's negligence had caused and continued to cause him stress, anxiety, and suffering and complained that all he had received was a letter requiring him to vacate whilst work was done. At that point he listed his demands under the heading "seven day notice." These included work to be done to the bathroom in order to enable him to have a bath in safety; and compensation of £2,600.00. In default of these occurring he said he would apply to the High Court for "directions, orders and declarations" and would send his file relating to what he described as the Landlord's "fraudulent actions" to the Serious Frauds Office. He also threatened to go to the tabloid press and to take all necessary steps to ensure that the Landlord complied with all Health and Safety Regulations. He made it clear that if matters were not attended to he would sue the landlord for "exemplary and punitive damages."

[30]On 19 December 2000, Ms Rowe wrote to Mr. Shine advising him that she had received an initial report from the asset management officer which indicated that it should be possible for Mr. Shine to stay in his home whilst the repairs were carried out. The works were envisaged to take approximately three days, and that he would be without washing toilet facilities for one of those days. Should it prove necessary, Mr. Shine would have to move to alternative accommodation, and the timescale for the work had been based on initial investigation only. The work would not be started until after Christmas and she would write again after a date had been confirmed. In the meantime, Mr. Shine should not use his bath until the work had been completed. Accompanying that letter was a form for Mr. Shine to sign confirming his agreement to work being carried out to his property whilst he was in occupation.

The proceedings

[31]Mr. Shine did not respond to that letter; instead he issued proceedings on 5 January 2001. He was, of course, acting in person, and the claim form reflects the fact. The claim was expressed in the following way: - 1) The defendant has committed and continues to commit serious acts of negligence and fraud; 2) The defendant refuses to carry out health and safety works; 3) The defendant (over a period of ten plus years) has fraudulently claimed, through the rent officer, increases in my rent for maintenance works which have never been carried out; 4) The defendant because of his actions caused and continues to cause me stress, anxiety, and suffering on a daily basis. VALUE Aggravated, punitive, and exemplary damages £260,000 +

Aggravated, punitive, and exemplary damages

[32]It would seem that the figure of £260,000 represents the figure of £2,600 contained in the letter of 13 December 2000 (see paragraph 29 above) multiplied by one hundred. In its Defence, the Landlord pleaded that the claim form as completed by Mr. Shine did not identify a cause of action, or was otherwise an abuse of the court process, but it at no stage applied to strike it out. As we have already stated, the claim has throughout been treated as a claim for damages of the implied covenant to repair contained in LTA 1985 section 11.

[33]The Landlord filed its initial defence on 15 January 2001. Its essential case was that the need for the substantial repairs to the premises did not come to the Landlord's notice until about 26 October 2000, when the Landlord's housing officer had inspected the premises. The Landlord alleged that Mr. Shine was in breach of his obligation to report to the Landlord any disrepair or defect for which the landlord was responsible in the structure or exterior of the premises or any installation therein or in the common parts. It pleaded that the claim was statute barred prior to 5 January 1995, and that Mr. Shine had persistently refused the Landlord access to the premises to inspect and to carry out repairs.

[34]The first hearing occurred on 14 March 2001 before Mr Recorder Huskinson. The Recorder did not make an order but recorded an undertaking given by Mr. Shine in the following terms namely; that he would allow the Landlord and its agents access to the premises between 8:00am and 6:00pm on any weekday, such access to be conditional upon the Landlord giving Mr. Shine not less than twenty-four hours notice in writing, that notice to be given separately in respect of the following namely(a) a visit or visits in order to establish which emergency works are needed;

(b) a visit or visits in order to carry out those emergency works if any;

(d) a visit or visits in order to carry out further works if any.

[35]In addition, Mr. Shine agreed to give full particulars of his allegations of fraud and negligence by 20 March 2001, and an expert was appointed as joint expert in the field of surveying. The expert was to prepare a written report on the condition of the premises, including an opinion of whether the landlord required the premises to be vacated for the works to be undertaken. That report was to be filed and served by 4:00pm on 3 April 2001. There was also to be a case management conference before the Circuit Judge on the first available date after the 3 April 2001 with a time estimate of 30 minutes at which the question of allocation was to be dealt with. Though the schedule of undertakings records that costs were to be reserved, the order made by the Recorder was in fact costs in the case. Mr. Shine signed the conventional statement acknowledging that if he broke any of his promises to the court he was liable to be sent to prison for contempt of court.

[36]Most unfortunately, this promising start did not bear fruit. There was, indeed, a report by the jointly appointed expert Mr James Belk MRICS dated 2 April 2001. Mr Belk reported, in summary, that severe damage had been caused to the bathroom floor in the area below the bath as a result of long term leakage. In addition;(1) the basement area including the walls were inherently damp;

(2) the wall plate supporting the ground floor structure was not isolated from the damp walls and was, itself, damp. Dampness was also evident within the ground floor structure and floorboards adjacent to the external walls;

(3) a dry rot attack was evident to the suspended timber ground floor construction, although its extent could not be fully assessed at this time;

(4) damp levels within the ground floor and the lack of effective isolation of the ground floor timbers were likely to result in the rapid spread of dry rot fungus throughout the ground floor flat and subsequently also through the timber staircase up to the first and potentially second floor level;

(5) substantial works were required as a matter of urgency to remove the dry rot infestation. This would require the complete removal and replacement of the ground floor structure and temporary removal of part of the staircase;

(6) the extent of work required would mean the complete removal of sanitary fittings to the ground floor;

(7) the extent of rectification works could not practicably be carried with Mr. Shine in occupation both in terms of practicality and in terms of health and safety risks; and

(8) the lack of sanitary provisions during the remedial works made the property technically uninhabitable.

[37]On 2 May 2001, the case came for the first time before Judge Cotran. Mr Belk was formerly appointed joint expert (his was not the name which appeared in the agreement of 14 March 2001). He was required by 16 May 2001 to provide an estimate of the time required to complete such works as were necessary during Mr. Shine's absence from the premises and / or an estimate of the time required to complete all works if different.

[38]The Landlord had offered alternative accommodation to Mr Shine for the duration of the works. This was a property owned by the Landlord at 5, Goodspeed House, London, EC2 (Goodspeed House). The Landlord was directed to provide full details of its offer of its alternative accommodation to Mr. Shine by 30 May 2001 and the claim was listed for further case management directions on the first available date after 2 August 2001 before the judge. Costs were reserved.

[39]Although not directly relevant to this appeal, we cannot but notice that on 2 May 2001, in addition to being required to provide written details of his claim for special damages by 9 May 2001, Mr. Shine was given permission by Judge Cotran to increase his claim for general damages from £260,000 (already itself a grossly inflated figure) to the even more extraordinary sum of £360,000. He was permitted to do this by the judge without the need for formal amendment of his claim form.

[40]Following this theme through, we cannot but notice again that when the matter came back before the judge on 4 June 2001, Mr. Shine was once again permitted by the judge to increase his claim for general damages to £1,080,000 "without the need for formal assessment" (sic); and that on 6 August 2001, at the same time as ordering him to vacate the premises in order to take up temporary accommodation, Mr. Shine was once again permitted by the judge to increase the value of his claim to £5 million, formal amendment once again being dispensed with. In these circumstances, it is hardly surprising that shortly before trial, Mr. Shine increased his claim to £10 million, which was also the figure in the Respondent's notice, which he attempted to put in before us.

[41]We find it quite extraordinary that the judge should have permitted these amendments, which, we are told, were opposed by the landlord, and for which the judge does not appear to have provided any reasons. In the concluding paragraph of his judgment on 10th June 2003 when awarding Mr. Shine a total of £19,000 by way of damages the judge stated “I have to tell him that his expectations of millions cannot be achieved but that is all he is entitled to. He has asked for exemplary damages. This is not a case where exemplary damages can be awarded, but it is a very bad case and the total sum I award from 1996 to 2003 is £19,000.”

[42]It is self-evident in our judgment that Mr. Shine's initial claim of £260,000 was, as we have already stated, grossly exaggerated and wholly unrealistic. We respectfully agree with the description of the amendments of the claim given by Hart J in paragraph 19 of his judgment on an interlocutory appeal on 7 March 2002 (which we set out in paragraph 53 below). He said they were of "ludicrous proportions".

[43]In our judgment, the judge is to be very strongly criticised in this respect. It was more than a wholly unjudicial exercise of discretion to permit Mr. Shine to amend his claim not once but four times in the manner we have described; it was in our judgment both irrational and irresponsible. Such explicit judicial encouragement of what can only be described as a fantasy on Mr. Shine's part that the court could or would enrich him to such an extent has, we have no doubt, played a substantial part in Mr. Shine's subsequent behaviour and the prolongation of these proceedings. Furthermore, the later amendments were permitted at the same time as Mr. Shine was wrongly refusing to vacate the premises for the repairs to be undertaken, and was liable to committal for breaches of his undertakings and court orders.

[44]Returning to the chronology, on 16 May 2001, Mr Belk produced his second report. Mr Belk reported that the works would take approximately eight weeks to complete, and that it would not be possible for Mr. Shine to return until the floors / partitions had been reinstated and the kitchen and bathroom fittings installed.

[45]On 4 June 2001 the matter came back before Judge Cotran. The parties agreed to a joint view of Goodspeed House by 8 June in order to assess its suitability as temporary accommodation. The landlord offered to carry out any work to 5 Goodspeed House by 4.00pm on 22 June in order to make the premises suitable as temporary accommodation for Mr. Shine. A further case management conference was directed for 6 August 2001.

[46]On 6 August 2001 Judge Cotran ordered Mr. Shine to vacate the premises and take temporary possession of 5 Goodspeed House by 4.00pm on 13 August. The judge directed that works to the premises were to commence, as per Mr Belk's report as soon as possible after Mr. Shine had vacated the property and were to be completed within eight weeks as proposed by Mr Belk. Both parties were given liberty to apply after the eight-week period if necessary and if it was not necessary Mr. Shine were to retake possession of the premises after the eight-week period and completion of the work. Costs were once again reserved.

[47]Unfortunately, Mr. Shine did not vacate the premises in obedience to Judge Cotran's order. Instead, he applied to the judge unsuccessfully on 10 August 2001 for permission to appeal. On the same day he was advised by Ms Joanna Tibbles, a Service Delivery Officer employed by the Landlord, that he must comply with the order and be ready to move into Goodspeed House on a temporary basis

[48]On 13 August 2001, Ms Tibbles visited Mr. Shine again. She formed the view that he was not going to vacate. Having sought advice from the Landlord's solicitors, she advised Mr. Shine that if he did not vacate, the Landlord would have no alternative but to make an application to the Court for him to be committed to prison.

[49]When Mr. Shine did not vacate, Ms Tibbles swore an affidavit on 17 August in support of applications by the Landlord for Mr Shine's committal, alternatively for a further injunction to enable the Landlord to gain access to the premises. However, the Landlord subsequently took the view that the order of 6 August 2001 was not enforceable by way of committal and did not proceed with the application.

[50]The application for a further injunction did not come before Judge Cotran until 10 December 2001. Part of the explanation for the delay may be that on 22 October 2001 the Landlord served a notice seeking possession on Mr Shine, and on 20 November 2001, as an alternative to committal, and as a means of moving the matter forward, the Landlord amended its pleadings to counterclaim for possession under Ground 1 (the failure by Mr Shine to provide access to the premises) and / or Ground 10 of HA 1985 Act (the Landlord's need to obtain possession in order to carry out work on the building). Those proceedings were, for some reason, given a separate number by the court.

[51]Mr Shine did not attend before the judge on 10 December 2001. The judge accordingly adjourned the application to 14 December 2001 and directed that unless Mr Shine attended the adjourned hearing his claim was to be struck out. The judge directed that the order of 10 December 2001 was to be served on Mr Shine by the Landlord the same day. Mr Bowker informed us that the initiative for the strike out did not come from the Landlord, but from the judge.

[52]When the matter came before the judge on 14 December 2001 Mr. Shine once again was not there. His explanation was that he was required elsewhere in another court. The order made on that day recites that the offer of Goodspeed House was available to Mr. Shine and the judge thereupon struck out the claimant's claim and directed him to vacate the premises by 4.00pm on 13 January 2002 in order for the works set out in the report of Mr Belk to be completed. The judge directed that the works were to commence no later than 14 January 2002 and in the event that they were not completed by 10 March 2002, the Landlord was to be at liberty to extend the period of the injunction. The order provided that such an application should be made in writing and supported by evidence. The injunction was to continue until 11 March 2002 or further order and the judge directed that the costs of Mr. Shine's action should be the Landlord's subject to a detailed assessment.

[53]Mr. Shine sought permission from the Chancery Division to appeal the judge's order, and permission was given by Jacob J. (as he then was) on 12 February 2002. Mr. Shine's appeal came before Hart J. on 7 March 2002. We have a transcript of that judgment, which carefully recites the history. In relation to the strikeout, Hart J comments: - “19. So far as the strike out order is concerned, no application had been made to His Honour Judge Cotran of which written notice had been given to Mr Shine that such relief would be sought when the matter came before His Honour Judge Cotran on 10 December. The only notice that was given that the claim might be struck out was that given by the order made by Judge Cotran on 10 December and served that day on Mr Shine. It is not clear to me, because no reasons were given either for the order made on 10 December or the order made on 14 December, exactly upon what basis the court proceeded to strike out the claimant's claim. The effect of striking out the claimant's claim, in so far as it has any substance at all, would have significance both in relation to costs and in relation to limitation of defences that might be available should the claimant bring a new action based upon the same facts. In fact, the claimant had done little to progress his claim other than by, so far as I can tell, repeatedly amending it to increase to ludicrous proportions the sum of money claimed by it. It does not appear, at any rate, from the papers that I have that the claimant had to comply with such orders as had been made earlier in the year to provide particulars. However, it does not appear that the striking out was ordered on the grounds that there had been failure to comply with previous orders in relation to the pleadings. What the order of 10 December suggests is that the judge was taking the view that the failure of Mr Shine to attend on that day was a matter which, if repeated on 14 December, justified the step of striking out his claim altogether. So far as that is concerned, even if Mr Shine had no real excuse for not attending on 14 December, I am unable to see how a striking out on that ground can be supported. There was no obligation on Mr Shine to attend on 10 December in relation to any aspect of his claim against the defendant. So far as the defendant's applications against him were concerned, his failure to attend carried with it the risk that the injunctive relief being sought by them might be granted, and that was a risk which he ran by not attending. To impose the penalty of having his whole claim struck out on his non-attendance on the 14th seems to me to be a disproportionate exercise of the court's powers in relation to a matter where, in any event, if Mr Shine's reason for non-attendance on the 14th was a genuine one, Mr Shine had a perfectly good excuse. Accordingly, it seems to me that the appeal should be allowed, so far as paragraph 1 of the order dated 14 December is concerned.”

[54]So far as the balance of the order was concerned, Hart J commented: - “20. So far as the remaining parts of the order are concerned, it does not seem to me that, aside from the question of Mr Shine's non-attendance, there was anything in those parts of the order, which can be criticised by an appeal court. The position as a matter of law is that a landlord who is under an obligation to effect repairs is entitled in a case where it is strictly necessary for the purposes of his performing his obligations to do so, to require the tenant to move out in order to enable the works to be done. In strict law there is, in those circumstances, no liability on the part of the landlord to compensate the tenant for any resulting loss. That is established by the leading case of Fayner v Bilton [1878] 7 Ch Div 815, which has been approved by the Court of Appeal in McGriel v Wake

[1984] 13 HLR 134

. It is also established that the landlord's remedy in order to obtain the necessary access to and control of the premises for the purpose of the work is to proceed by application for an injunction, the grant of which is, of course, a matter for the discretion of the court. There was therefore nothing in principle, which could be criticised in the judge, on the basis of the evidence he had before him, coming to the conclusion that it was appropriate to grant the injunction that was sought, and to do so in the terms in which he did. Those terms included a liberty to the parties to apply to vary the terms of the injunction. It was, as it seems to me, entirely a matter for the discretion of His Honour Judge Cotran whether or not to proceed in the absence of Mr Shine, and to do so notwithstanding the reasons Mr Shine had given for his non-attendance. Mr Shine had two potential methods of protecting himself in relation to that

[55]The order made by Hart J reinstating Mr. Shine's claim but upholding the injunction and adjusting the times for compliance included an order that Mr. Shine should pay seventy-five percent of the Landlord's costs of the appeal in order to reflect his success in the process of reinstatement, coupled with his failure to over turn the injunction. The judge assessed those costs at £1,500 to include VAT, and it is this sum, which the judge refused the landlord permission to set off against the damages, which he awarded in June 2003. Hart J also discharged Judge Cotran's order that Mr. Shine pay the Landlord's costs of the struck out proceedings.

[56]At the hearing before Hart J, the Landlord informed the judge that the Defendant had been obliged to let Goodspeed House, both because it had been kept vacant for a disproportionate length of time, and because it was apparent that Mr. Shine had no intention of going to live there whilst the works were undertaken. Hart J was told that a further offer of alternative accommodation would be make.

[57]On 19 March 2002, the Landlord's solicitor wrote to Mr. Shine advising him that he must vacate the premises by 28 March 2002 in accordance with Hart J's order. Mr. Shine was reminded that Hart J had stated that a landlord who was under an obligation to effect repairs was entitled to require the tenant to move out to enable the works to be done and that in strict law there was, in those circumstances, no liability on the part of the landlord to compensate the tenant for any resulting loss - see paragraph 20 of Hart J's judgment set out at paragraph 54 above. The Landlord then offered Mr. Shine Flat 35B St Matthew's Row, the flat immediately above the premises. After an inspection, Mr. Shine refused that accommodation on the grounds that work had to be carried out to the stairs.

[58]On 4 April 2002 Mr. Shine was advised by letter that if he did not vacate by 10 April, committal proceedings would be taken against him. He was again reminded of Hart J's judgment. On 18 April 2002 Mr. Stephen Elliott swore an affidavit in support of the committal application.

[59]On 20 May 2002 the matter was back before Judge Cotran. The judge refused Mr. Shine's application to vary or set aside the injunction he had made on 14 December 2001, thereby requiring Mr. Shine to leave the premises to enable the work to be done. However, the judge (as exchanges between himself and counsel on 15 July 2002 demonstrate) made it clear that he would not be prepared to entertain a committal summons. The judge directed Mr Belk to file a further report by 3 June 2002 and gave directions for trial.

[60]Mr. Belk produced what he called his "Addendum Report No. 2" on 14 June 2002, in which he concluded that it would not be feasible for any part of the building comprising the premises to be inhabited until the replacement of the ground floor structure and the re-instatement of the staircase was completed. This effectively rendered it impractical for Mr. Shire to occupy Flat 35B whilst the works to the premises were completed. Mr. Belk attached to his report a schedule of works required for the removal of dry rot and isolation of timber structure.

[61]Mr. Shine still did not vacate the premises, and in an attempt to resolve the matter the judge made an order on 15 July 2002 that he was to supply the Landlord with a list of bed and breakfast accommodation of his choice in which he could stay (at the Landlord's expense) for a period of ten weeks up to a price not exceeding £150.00 per week; that if he provided the list the landlord would select an address and Mr. Shine would vacate the premises as soon as the choice had been made. Once again there was a direction that the works contained in Mr Belk's report were to be commenced as soon as the premises were vacated and there was an order for discovery of documents by the claimant. Once again, costs were reserved.

[62]On 7 August 2002 there was a complicated order in relation to documents, and the time for Mr. Shine to provide the Landlord with lists of bed and breakfast accommodation (this time at a price not exceeding £200.00 per week) was extended to 19 August 2002. The previous mechanics for vacation of the premises following the selection of suitable accommodation were repeated and once again costs were reserved.

[63]On 30 August 2002 the matter was once again before the judge. Mr. Shine informed the judge that he would vacate the premises on the following day and take up temporary accommodation at premises known as the Mile End Guest House, London E3. Once again it was directed that the works would commence once he had vacated. The Landlord agreed to pay Mr. Shine's reasonable expenses of the alternative accommodation; and the case, which was expressed to be part heard, was to be listed before the judge at 10:30am on 28 October 2002. Directions were given for trial bundles and the judge made an order that if Mr. Shine had not given the landlord vacant temporary possession of the premises by 28 October 2002 the court would hear on that date the landlord's claim for possession on grounds 1 and / or 10 of Schedule 2 of HA 1985.

[64]On 2 December 2002, we are told (we do not have a copy of the order) that Judge Cotran gave further directions, including a direction that Mr. Shine should occupy bed and breakfast accommodation known as Grangewood Lodge whilst the works to the premises were carried out. We are told that Mr. Shine undertook to vacate the premises on 13 January 2003, and that the Landlord had arranged for contractors to start work on that day. Temporary accommodation was arranged for Mr. Shine at Grangewood Lodge, and Mr. Elliott says that when he visited Mr. Shine on 8 January 2003, Mr. Shine confirmed that he would be vacating as agreed on 13 January 2003.

[65]Unfortunately, Mr. Shine did not vacate the premises, and the contractors could not start work. On 16 January 2003 His Honour Judge Gibson granted the landlord an injunction requiring Mr. Shine to vacate the premises. Mr. Elliott says that a committal application could not proceed because there was no penal notice attached to the order of 2 December 2002.

[66]On 20 January 2003, Judge Cotran gave various directions in the Landlord's proceedings for possession. On 30 January 2003 the possession claim was listed but not heard and Mr. Shine was again ordered to vacate the premises in order to take up occupation of Grangewood Lodge. We are told Mr. Shine refused to take up occupation of that property because the landlord took a decision to change the locks on the premises. An application was made to the judge, who, we are told, refused permission for the locks to be changed during Mr. Shine's absence. As a result, the property was occupied by squatters on 5 March 2003, and the Landlord had to take urgent, summary High Court proceedings to regain possession. The squatters were evicted on 21 March 2003.

[67]On 6 February 2003 Judge Cotran dismissed the Landlord's application for the claim for possession to be re-listed and heard. However, he once again ordered Mr. Shine to vacate the premises. On either 6 or 7 February 2003 Mr. Shine finally vacated the premises and took up temporary accommodation at the Newham Hotel.

[68]On 31 March 2003 the judge listed the matter as part heard for trial on 9 June, gave further directions for trial and stayed the Landlord's claim for possession. The works were then undertaken, and although Mr Shine initially refused to leave the Newham Hotel and move back into the premises, he eventually did so coincidentally with the hearing. The trial concluded before the judge on 9 and 10 June 2003.

The evidence heard by the judge

[69]In addition to the judgment, we have transcripts of parts of the hearings before the judge on 15 July 2002, 28 November 2002, and 9 June 2003, as well as of the exchanges between counsel and the judge after judgment had been given. Even bearing in mind that Mr. Shine was acting in person, and that as a consequence the judge may have felt the need to be more interventionist than if he was represented, the transcripts make very unhappy reading. Counsel's opening on 15 July 2002 is so persistently interrupted by the judge that counsel is rarely able to utter more than two sentences at a time. Counsel's perfectly proper attempt to cross-examine Mr. Shine is likewise subjected to a running commentary from the judge, most of it hostile. Counsel remains entirely courteous throughout, and when, towards the end of the day it looks as if he is going to be unable to finish, he says that he would be grateful if the case could be put over to another date. The judge replies: - To another date, what? After you finish the work or ....You know, I have other things to do. I have given you time. You estimated a day today. We have had a day and we have not finished. I am offering you tomorrow simply because I had a two day case that collapsed. Counsel: Your Honour, with respect, your Honour has consistently interrupted me this afternoon. Judge Cotran: I have interrupted you because you are asking irrelevant questions. I think I am entitled to do that.

[70]On 8 June 2003, Mr. Darren Downer gave evidence. Mr Downer was a surveyor who took over from Mr. Belk. It was his evidence that once Mr. Shine had vacated the property and the defective areas had been properly exposed, the position was not as serious as Mr. Belk had estimated and that, in broad terms, having taken specialist advice, Mr. Downer had come to the conclusion that it was unnecessary to undertake the entire schedule of works specified by Mr. Belk.

[71]The fact that Mr. Downer had not adhered to Mr. Belk's specification appears greatly to have angered the judge, and he accused Mr. Downer or taking no notice of Mr. Belk's specification of works. He put to Mr. Downer, in terms and, it seems to us, without any justification:

"You thought it too much that he recommended and cut corners. That is what we call it in layman's language"

. He then constantly interrupted Mr. Downer's attempts to explain.

[72]Fortunately for this appeal, it is unnecessary for us to set out any more of these unedifying exchanges because Mr. Downer courteously but firmly stood his ground, and the judge eventually backed down. Indeed, he had the grace to apologise to Mr. Downer for taxing him with so many questions. Furthermore, in his judgment, the judge appears to have accepted Mr. Downer's evidence that the works to the premises had been properly completed by the Landlord.

The submissions made to the judge on the landlord's behalf

[73]The judge had the advantage both of a careful skeleton argument prepared by Mr. Bowker, and closing submissions in writing. These two documents set out the landlord's case in detail and with clarity.

[74]For the proper approach to the question of damages for breaches of the implied covenant to repair under LTA 1985 section 11, Mr Bowker referred the judge to the decision of this court in Wallace v Manchester City Council (1998) 30 H.L.R 1111. For the purposes of the assessment of damages in the instant case, counsel identified five distinct phases in the case. These were: -(1) from 5 January 1995 to approximately 1996 - that is to say from the statutory limitation date to the date when the proceedings, as Mr Bowker put it, went to sleep;

(2) from 1996 to 1999. This was the period from the proceedings going to sleep until smells began to emanate from the basement;

(3) from approximately 1999 to the 1 September 2000. This was the period leading up to the visit from Ms Rowe on the latter date (see paragraph 20 above);

(4) from 1 September 2000 to 6 February 2003 which Mr Bowker described as the landlord attempting to gain access in order to carry out the works;

(5) from 7 February 2003 to 6 June 2003 being the period when Mr. Shine was temporary re-housed until the works themselves completed.

[75]Mr Bowker argued that for the first period an award of fifty percent rent would be reasonable. For the second period he argued that the figure of fifty percent of the rent should be reduced further to twenty-five percent because Mr. Shine had failed to mitigate his loss by complaining. For the third period Mr Bowker proposed damages at the rate of seventy-five percent of the rent payable, given in particular that the situation did deteriorate sharply. For the fourth period he argued that because Mr. Shine had not given access in order for the works to commence his claim should be limited to the delay occasioned by the decision to put the works out to tender and the period in which squatters occupied the property. He argued for a period of some 4 to 5 months at the rate of seventy-five percent of the rent payable. Finally, in relation to period five, he pointed out that the landlord had paid Mr. Shine's reasonable removal and living expenses, and that Mr. Shine had not complained about his accommodation. He argued, accordingly, that any award for this period should be modest to reflect the inconvenience of being away from home. He suggested, accordingly, damages at the rate of fifteen percent of the rate payable for the four-month period.

[76]Adding these figures together, which Mr Bowker submitted were within the guidelines set out in Wallace v Manchester City Council, the total damages amounted to £6,926, broken down as follows: - Period 1: 50% of rent (then £2,119pa) x 1.5 years £1,589.25 Period 2: 50% of assumed rent of (£2,496 pa x 3 years, Further discounted £1,872.00 Period 3: 75% of assumed rent of £2,860 pa x 1.25 years £2,681.25 Period 4: 75% of assumed rent of £2,860 pa x 0.3 years £6843.50 Period 5: 15% of assumed rent of £3,120 pa x 0.3 years £140.00 Total £6,926.00

[77]In his closing submissions to the judge, Mr Bowker amplified these arguments, pointing in particular to the numerous court orders and the offers of suitable accommodation made to Mr. Shine. He submitted that this was not a case in which aggravated damages could be awarded, and that the claim for damages for this repair was a claim for breach of contract (express and implied repairing obligations) whereby the breach had given rise to physical inconvenience and discomfort. Furthermore, this was not a case in which exemplary damages could be awarded, even if they were warranted which, he argued, they manifestly were not.

The judgment given by the judge on 10 June 2003

[78]We thus come to the judgment of Judge Cotran delivered on 10 June 2003. We bear in mind, of course, that although the judge knew the case well this was an extempore judgment. The judge recited the terms of Mr. Shine's particulars of claim, which we have set out at paragraph 31 above, and reported without comment that Mr. Shine had increased his claim to £10 million over the course of the proceedings. He commented that Mr. Shine had gradually left out his allegations of fraud, thereby leaving the question as one of damages for disrepair. The judge recorded Mr. Shine's position that he had never refused access to the premises.

[79]The judge then went through the proceedings. In paragraph 13 of his judgement he made a finding that Mr. Shine was ““being extremely difficult” about where to go whilst the works were being done.”

[80]The judge records that Mr Downer had departed from the schedule of works prepared by Mr Belk but finds, on this issue, in these terms: at paragraph 18 of the judgment “Although it seems that the appendix was not followed completely, I was satisfied, having heard from Mr Downey (sic) that in fact the main bulk of the problem was removed as a whole and a visit by (Mr. Shine) this morning which he reported, having left from his bed and breakfast accommodation, he says on the face of things all is well, and I have looked at the photographs.”

The judge's conclusion is that:

"the long and the short of this story is that this flat has been in an awful state of disrepair."

The judge recalled Ms Rowe's and Ms Tibble's visit in September 2000 and the evidence of Mr Rankine who inspected on 13 November 2000. He recorded the need for the initial injunction when Mr. Shine refused to vacate. However, he then adds:

“I should say, before getting to Mr Belk, that this story that it was discovered for the first time is, with the greatest of respect to the defendants, complete nonsense. Avrom Shine has been, to say the least, a very difficult tenant. Almost a year after he went in, he complained bitterly about all sorts of things including a tree and windows until 1992/93, and at one stage had instructed solicitors to act on his behalf. That seems to have been settled by 1994/95. There were other disputes regarding the rent. So he was not the easiest of tenants and he was, what I may call, a difficult secure tenant, a disputant, who really must have been known, and very well known, to the defendants as a complainor on all sorts of things.”

[82]The judge then goes on to find that the first inkling of damp came in the letter of Mr Shine dated 11th August 1995 addressed to a Mr B Davies, the housing officer: He also refers to a letter of November 1996 from the claimant which refers to some rubbish in the garden as a PS, but has an attachment which seems to indicate that he was talking on the same subject as in the matters referred by Mr Davies to the maintenance department. He comments that it is “completely above dispute is that they clearly looked in 1999”.

The judge then makes the following finding:

[83]- “It is clear that a look at the file, despite personnel changes, would have indicated that the complaints about the damp had begun way back in 1995, and for the defendants to say and plead as they did initially that they "discovered" the dampness and dry rot, so to speak, by this visit of Martina Rowe is, complete nonsense. I accept there is no documentary evidence that we have of further written complaints until March 1999 but of course following that there was a specific reference to the damp again and the smell, and it is clear that by then the dampness generally had increased considerably and the dry rot could be seen by the officers, Martina Rowe and Miss Tibbles, and Dan Rankine, who found the place in a dangerous state requiring him to leave by certainly 2000.”

The judge then cites extracts from Mr Belk's report and concludes:

[84]- “So there is no doubt that this place not only was in a dangerous situation in the eyes of Mr Dan Rankine and the officers of the Council who visited it looking at it with the naked eye, and Dan Rankine a bit more technically; here was an expert appointed by the court saying: "This place is dangerous, uninhabitable", and this was supposedly things of which they pleaded at first, "we had no notice of".”

[85]The judge then criticises the Landlord for what he describes as a lack of urgency following the restoration of the proceedings by the order of Hart J. The judge also criticises the landlord for its failure to provide alternative accommodation for Mr. Shine, whom the judge acknowledges was "a very difficult man" and concludes: - “The long and the short of it is that from as early as 1999 this man inhabited an uninhabitable place and a dangerous place until such time that the contractors went in to do the work, which was only completed on 6 June, I think, on the Friday before the hearing, and so reported to me today, and then not fully in accordance with the appendix that Mr Belk had prepared.”

[86]The judge then turns to the question of the measure of damages. He refers to Mr Bowker's skeleton argument and the proposition contained in it that damages should be assessed by reference to the rent payable. He comments that this rule is not absolute. He says: - “That was recommended in Wallace v Manchester City Council, which talked of guidelines but in effect is, and remains, the leading case for giving damages for disrepair which have looked at the matter either in a general way i.e. globally and then made a check via the rental - the guidelines that were simply stated there were anything between £1,000 and £2,750.00, which represents what will be the normal annual rent maximum for this type of property.”

[87]The judge then makes substantial citations from the head note to the case (to which we will return). He recites Mr Bowker's submission from the skeleton argument (which we have identified above) and comments that Mr Bowker's assessment for £2,100.00 to £2,300.00 is, in his view "very much off the mark." The judge then continues: - “As I have said, I do not propose to adopt this method. I think this is a case where one must look at the picture of this man living in these conditions since the beginning of 1999 to the full knowledge - full knowledge especially after the September 2000 visit and having reported the problem of damp in the bedroom and bathroom as far back as 1995. So it seems to me that the best way to do it in this case is by looking at the number of years pre-1999, that is to say from 1996 to 1999, a period of three years, and then, after 1999, despite the attempts to get in, the delays in the repair of the flat which was in such a dangerous state must be looked at as a whole. Even though this man was extremely difficult, and I accept he was difficult, he was right to be difficult because the expert himself said he must be moved out. If he must be moved out, he must be moved out where he can go. (Our emphasis) That required more urgency despite my previous orders. But, in any event, the fact is that but for the time he spent in this bed and breakfast accommodation in the last few months he was living in an uninhabitable place which was dangerous, to the knowledge of the defendant for all these years, and they certainly took their time over carrying out the repairs and even then not fully as recommended by Mr Belk. I would award the claimant for the first period of three years the sum of £3,000, basically on the basis that although there was damp and dry rot it had not got so serious up to 1999. But it seems to me that by 1999 there was a complete stench in this place, noticed by the people when they came in in September. It was reported to be dangerous. And from then on and shortly afterwards the boiler packed up, there was no hot water, there was no heating in the winter, and the floorboards were almost falling down, the bathroom was unusable. Although I suppose he could have used, and did use the rest of the flat, the fact remains that this place was uninhabitable. I accept that Mr Shine suffered stress and anxiety on a daily basis. I would award for that period from 1999 until his re-entry last Friday the sum of £16,000. That sum will be added to the £3,000 I have awarded for the initial period, making a total of £19,000 damages. I have to tell him that his expectations of millions cannot be achieved but that is all he is entitled to. He has asked for exemplary damages. This is not a case where exemplary damages can be awarded, but it is a very bad case and the total sum I award from 1996 to 2003 is £19,000.”

The Landlord's attack on the judgment

[88]As we have already stated, there is no appeal by the Landlord from the award of £3,000.00 for the first period of three years from 2 May 1996. However, Mr Bowker attacks the global award of £16,000.00 for the period from 1999 to June 2003 in a number of ways. Firstly, he says that the judge has failed to follow the guidance given in Wallace v Manchester City Council. Whilst accepting that the guidance in that case is not written in stone, it recommends that if a judge is to make a global award, he should cross check that the award against the rent payable, to ensure that the award is not disproportionate. The judge, Mr. Bowker argues, did not carry out that exercise.

[89]Secondly, Mr Bowker criticises the judge for failing to give any reasons for his global award £16,000.00. If the judge was to depart from the approach recommended in Wallace v Manchester City Council, Mr Bowker submits that he was under an obligation to explain how he has reached his award. It is, Mr Bowker argues, wholly insufficient for a judge to announce that he is not going to follow the Wallace v Manchester City Council approach, and then to make an award for which he gives no reasons.

[90]Thirdly, Mr Bowker criticises the judge for taking no account of Mr. Shine's behaviour in refusing to vacate the premises in order to allow the repairs to be carried out, the consequences of which were applications for injunctions and committal together with a substantial increase in costs. Had Mr. Shine vacated pursuant to any of the various court orders, as he was required to do, the work would have been completed earlier. The extended period to June 2003 was, Mr. Bowker submitted, very largely the responsibility of Mr. Shine. It was manifestly unjust, counsel argued, both to award a figure which averaged £4,000 per annum between 1999 and 2003 (a sum which was substantially in excess of the rent payable) and to award it for a period which, in large measure, was substantially extended by Mr. Shine's misbehaviour in disobeying court orders.

[91]Mr Bowker further criticised the judge's finding that Mr. Shine was "right to be difficult" (see the highlighted passage at paragraph 87 above). It was difficult to see, Mr Bowker argued, how a person could be "right" to disobey orders of the court, or breach his undertakings to the court, particularly when the consequences were additional delay and expense.

[92]We thinks there is considerable force in each of the points Mr. Bowker makes. Before examining them further, however, we propose to examine the authorities, and in particular, Wallace v Manchester City Council.

The authorities

[93]Mr. Bowker referred us to a number of authorities. He cited the decision of this court Minchburn v Peck

(1988) 20 HLR 393

for two propositions: firstly that a Landlord's liability under LTA 1985 section 11 does not arise until the tenant puts the landlord on notice of the disrepair; and secondly that the tenant in such cases is under a duty to mitigate his losses. He also relied upon the authorities cited by Hart J in paragraph 20 of his judgment (set out at paragraph 54 above) to demonstrate that the Landlord had acted in good faith and had exceeded its legal obligations by supplying Mr. Shine with free alternative accommodation whilst the repair to the premises were carried out.

[94]Unsurprisingly, however, Mr. Bowker placed particular reliance on Wallace v Manchester City Council, a decision of this court, which, as the judge recognised, is plainly the leading case on the subject. In that case, the plaintiff was a secure tenant of a house let to her by the defendant in 1989. On 8 March 1996, a firm of surveyors prepared a report on the condition of the property on her behalf. Numerous defects were noted of a substantial nature. The report recorded that the tenant had complained that the property had suffered from an infestation of rats, and that the living room window was in such a condition that the room remained extremely cold despite continuous heating. It was clear from the report that the defects were alleged to have existed for varying periods of time.

[95]On 27 August 1996, the defendants inspected the property and prepared a schedule of works. The claimant then took proceedings on 24 January 1997 against the defendant alleging breach of the repairing covenant implied into the tenancy under section 11 of the 1985 Act. When the action came on for trial in July 1997, the tenant gave evidence that she had been complaining to the authority about disrepair from 1992. The first record of such complaint made by the authority was on 25 October 1994.

[96]The judge found that there had been breaches of the repairing covenant, but did not specify when notice of the breaches had been given. He awarded damages of £2,000 to each of the plaintiff's children, and special damages for damage to curtains, carpets, and furniture in the sum of £780. As to general damages, the plaintiff argued that the judge should make both an award for general damages for discomfort and inconvenience, and an award reflecting the diminution in the value of the tenancy based on the amount of rent paid. The judge rejected this argument and made a global award for the stress, inconvenience, and disruption to the tenant's lifestyle in the sum of £3,500, expressed to include any further discomfort experienced during the execution of the remaining repairs. In rejecting the plaintiff's argument, the judge referred to the fact that her rent was paid by way of Housing Benefit.

[97]This court dismissed the plaintiff's appeal against the award. The leading judgment was given by Morritt LJ. He identified the plaintiff's argument in support of her appeal in the following way: - “First, it is submitted that the judge should have made an award in respect of diminution of the value of Mrs Wallace's tenancy arising from the disrepair by reference to the rent paid in addition to an award for discomfort and inconvenience.” She submits, second, that the fact that the rent was discharged out of the Housing Benefit to which she was entitled did not disentitle her to damages under such a head. Thirdly, she submits that the award was so low that this court is entitled to intervene and increase it.”

[98]Under the first argument, Morritt LJ examined a number of the cases in which diminution in value had been considered as a method of assessing damages. He pointed out that the agreed starting point was the basic principle that the purpose of an award of damages was, so far as possible an award of money to place the innocent party in the position he would have been in if he had not suffered the wrong, whether breach of contract or tort of which he complained. After an extensive review of the authority, Morritt LJ expresses his conclusions in a series of propositions. These are: - “First, the question in all cases of damages for breach of an obligation to repair is what sum will, so far as money can, place the tenant in the position he would have been in if the obligation to repair had been duly performed by the landlord. Secondly, the answer to that question inevitably involves a comparison of the property as it was for the period when the landlord was in breach of its obligations with what it would have been if the obligation had been performed. Thirdly, the periods when the tenant remained in occupation of the property notwithstanding the breach of the obligation to repair the loss to him requiring compensation is the loss of comfort and convenience which results from living a the property which was not in the state of repair it ought to have been if the landlord had performed his obligation (McCoy v Clark; Calabar Properties Ltd v Stitcher and Chiodi v De Marney) Fourthly, if the tenant does not remain in occupation but, being entitled to do so, is forced by the landlord's failure to repair, to sell or sub-let the property he may recover the diminution of the price or recoverable rent occasioned by the landlord's failure to perform his covenant to repair (Calabar Properties Ltd v Stitcher).”

[99]Identifying Mrs Wallace's case as being concerned with the proper application of the third proposition, not the fourth, Morritt LJ identifies the issue in these terms: - “Thus the question to be answered is what sum is required to compensate the tenant for the stress, inconvenience experienced because of the landlord's failure to perform his obligation to repair. Such sum may be ascertained in a number of different ways, including but not limited to a notional reduction in the rent. Some judges may prefer to use that method alone (McCoy v Clark); some may prefer a global award for discomfort and inconvenience (Calabar Properties Ltd v Stitcher and Chiodi v De Marney) and others may prefer a mixture of the two (Sturolson v Mauroux and Brent LBC v Carmel Murphy). But in my judgment, they are not bound to assess damages separately under heads of both diminution in value and discomfort because in cases within the third proposition those heads are alternative ways of expressing the same concept. It follows that in my judgement Judge Harvey was right when he said that diminution in the value of the property in relation to the amount of rent paid is not a separate head of damage. In the light of the submissions made to us I would make some general observations on the problems assessing damages in this field. First, I would agree with the observations of Stephenson and Griffiths LJJ in Calabar Properties Ltd v Stichter that expert valuation evidence is not of assistance when assessing the damage in accordance with my third proposition. The question is the monetary value of the discomfort and inconvenience suffered by the tenant. That is a matter for the judge. As Kennedy LJ observed in the course of argument there is no market in out of repair council houses on which expert evidence could either be admissible or helpful. Secondly, a judge who seeks to assess the monetary compensation to be awarded for discomfort and inconvenience on a global basis would be well advised to cross-check his perspective award by reference to the rent payable for the period equivalent to the duration of the landlord's breach of covenant. By this means the judge may avoid over-or under- assessments through failure to give proper consideration to the period of the landlord's breach of obligation or renature of the property.”

[100]Morritt LJ then dealt with the judge's award of £3,500.00. Counsel for Mrs Wallace had argued that an examination of the authorities to which Morritt LJ had referred indicated an unofficial tariff of damages for discomfort and inconvenience of £2,750.00 per annum at the top to £1,000.00 per annum at the bottom. Reliance had been placed on the plaintiff's evidence that she had frequently complained about the want of repair to the City Council since 1992. Accordingly, it was argued, if the judge had awarded her £3,500.00 for five years for discomfort then an annual award £700.00 could be seen to be well below the scale.

[101]The counter-argument from the City Council was that the judge did not appear to have accepted in terms that Mrs Wallace had been complaining (with the result that the City Council had noticed) of the want of repair since 1992. The defendant argued that the judge appeared to have awarded £3,500.00 for inconvenience for a period in excess of three years. £3,500.00 for three years represented £1,166.00 per annum, a sum well within "the unofficial tariff" relied on by the plaintiff.

[102]Morritt LJ dealt with these arguments in the following way: - “It seems to me that this dispute depends on the proper period for which to award damages. It is unfortunate that the judge made no finding in this respect. Given the sums involved it could not be right for us to remit the case to the judge to make such findings. In my view we must do the best we can on the materials available. The allegation in the particulars of claim was that Mrs Wallace gave notice of disrepair to the City Council in 1992. She gave oral evidence to that effect, particularly in cross-examination. On the other hand the first documentary reference to a complaint being made is a note dated 25th October 1994 made by the housing officer to whom Mrs Wallace had specifically referred in her statement. This recorded a complaint of rising damp. Moreover the passage from the report of Mrs Wallace's surveyor which I have already quoted (paragraph 3 above) indicates that not all defects had existed for the full five-year period. The collapse of the external wall occurred in early 1996 whilst the damp proofing and rat preventative had been carried out on three occasions before the report was prepared in March 1996. In these circumstances it appears to me that counsel for Mrs Wallace was right when drafting the notice of appeal to infer that the period of breach of the repairing obligation properly proves three years. In my view it has not been demonstrated by counsel for Mrs Wallace that the judge did or should have found a breach of obligation for any longer period. On the basis that the City Council was in breach of its obligations for the period October 1994 to July 1997 the damages awarded by the judge at approximately £1,000.00 per annum. Assuming but without deciding, that there is an unofficial tariff, such as counsel for Mrs Wallace suggests, in my view it has not been shown that the award made by Judge Harvey fell outside it. It follows that the amount of the award is not such to indicate any error in principle so as to entitle this court to interfere with the award the judge made.”

[103]It is, we think, worth pointing out that if one undertakes the cross-reference proposed by Morritt LJ in the extract from his judgment set out at paragraph 99 above, Mrs Wallace's rent was, at the material time, £47.40 per week or £2465.00 per annum. Three years' rent would, accordingly, amount to £7,395.00. The judge's award of £3,500.00 by way of damages represents a little under fifty percent of the annualised rent.

Discussion and analysis of the judge's award of damages in the instant case

[104]Whilst we accept that the guidelines helpfully set out by Morritt LJ in Wallace v Manchester City Council are not to be applied in a mechanistic or dogmatic way, and whilst we equally accept that there will be cases in which the level of distress or inconvenience experienced by a tenant may require an award in excess of the level of rental payable, we take the view that the plain inference of Morritt LJ's judgment, and the figures identified in the case itself, demonstrate that if an award of damages for stress and inconvenience arising from a landlord's breach of the implied covenant to repair is to exceed the level of the rental payable, clear reasons need to be given by the court for taking that course, and the facts of the case - notably the conduct of the landlord - must warrant such an award.

[105]It must, we think, always be remembered that an award of damages under LTA 1985 section 11 is an award for a breach of contract by the landlord, not for a tort committed by the landlord. It is, accordingly in our judgment logical that the calculation of the award of damages for stress and inconvenience should be related to the fact that the tenant is not getting proper value for the rent, which is being paid for defective premises. Moreover, the reason for the awards being modest is, it seems to us, related to the fact that the tenant in a secure weekly tenancy has the benefit of occupying premises at a rent, which is well below that which the same premises would be likely to command in the open market.

[106]In these circumstances, and viewed against the careful guidance given by this court in Wallace v Manchester City Council, we take the view that the judge's award cannot stand for the reasons which Mr. Bowker advances. Firstly, it is manifestly excessive on the facts. Secondly, the judge gives no explanation as to how he has arrived at it. He dismisses Mr. Bowker's careful calculations as "very much off the mark" without explaining why. Having decided (as he was entitled to do) to make a global award, he fails to check that award against the rent Mr. Shine was paying.

[107]As Mr Bowker points out, the average annual rent for the seven years between 1996 and 2003 was in the region of £2,600.00 per annum. The judge made an award of £16,000 for the period of about four years from May 1999 to June 2003. This exceeds the average level of rent by some £1,400 per annum. In these circumstances, Mr Bowker argues - we think with some force - that the maximum award (ignoring any features which otherwise go to reducing it) on the facts of this case would be a sum broadly equivalent to the rental value of the premises, and that any sum which substantially exceeds this amount is plainly wrong.

[108]Furthermore, it seems to us that the judge appears to have approached the case on the basis that the Landlord had behaved very badly, and that Mr. Shine, whilst difficult, had been entitled to be difficult. We agree with Mr. Bowker that this approach is unsustainable, and certainly so in so far as it seeks to ignore Mr. Shine's conduct. What stands out from the procedural chronology which we have set out at such length is that Mr. Shine on a number of occasions quite wrongly failed to take up the Landlord's offers of alternative accommodation (for which it was prepared to pay) and in so doing breached his own undertakings and orders of the court. Whatever the position prior to the institution of proceedings on 5 January 2001, it is plain to us that if Mr. Shine had co-operated, the works would have been done and he would have been reinstated within a maximum of six to nine months.

[109]Accordingly, we see nothing in the instant case to take it out of what might be described as the basic rule of thumb that - all other things being equal - the maximum award for damages in the case such as the present should be the rental value of the premises. It follows that on a proper analysis of the facts of the case, where there has plainly been a failure on the part of Mr. Shine to mitigate his damage, and in the absence of any of any rational justification of the figure of £19,000 by the judge, that figure cannot stand and his award must be set aside.

What award should be substituted for that of the judge?

[110]This leads to the difficult question of what we should now do. Mr. Bowker argued that in the circumstances of this case it would be wholly disproportionate for us to remit the matter to a different judge for reconsideration. We agree. Like this court in Wallace v Manchester City Council, we must do our best on the material available.

[111]Inevitably, our assessment of the proper figure to be awarded must involve some reconsideration of the facts. However, as we have already indicated, and looking at the succession of court orders, we think Mr Bowker is on strong ground when he submits that the judge appears to have placed all the blame for the situation on the landlord, and that he has failed to take into account Mr. Shine's failure to mitigate his loss during the period the proceedings were on foot.

[112]Mr Bowker submits that the interim orders speak for themselves in evidencing the delay caused by Mr. Shine's failure to vacate the premises earlier and to co-operate generally with the landlord. He submits that significant delay was occasioned by Mr. Shine's interim appeal, during which time, irrespective of the claim being struck out, Mr. Shine could have mitigated his loss by vacating. The judge was thus wrong not to reflect this fact by reducing the award for a failure to mitigate loss. In a making a substantial award for a period in which Mr. Shine was in breach of numerous court orders, the court, Mr Bowker submits, has discouraged the duty to mitigate loss.

[113]We accept those submissions. One way of approaching the matter (and perhaps the easiest) is to work on Mr. Bowker's figures. He submitted to the judge that the total award should be £6,925 (see paragraph 76 above). He did not argue before us that the damages should be less.

[114]A very similar result is achieved if, using the periods of time identified by Mr. Bowker in paragraph 74 above;(1) we exclude the period 5 January 1995 to 1996 for which Mr. Bowker conceded a figure of £1,589;

(2) we take the judge's figure of £3,000 for the second period (1996 to 1999) and

(3) we retain Mr. Bowker's figures for the remaining three periods to trial (£2.681 for period three, £643.50 for period 4 and £140 for period 5: - see paragraph 76 above). The total on this basis would be: - Period 1: (5 January 1995 to 1996) Nothing Period 2 (1996 to 1999): the judge's figure £3,000.00 Period 3 75% of assumed rent of £2,860 pa x 1.25 years £2,681.00 Period 4 75% of assumed rent of £2860 pa x 0.3 years 643.00 Period 5 15% of assumed rent of £3,120 x 0.3 years 140.00 Total £6,464.00

[115]If the figure of £1,589 for period 1 is added back, the total would be £8,053. This seems to us very much in the right area. However, we think we should test Mr. Bowker's figures by adopting slightly different time frames. Whilst acknowledging that the approach is inevitably a broad one, it seems to us that in addition to the figure of £3,000.00 for the period mid 1996 to 1999, (about which no complaint is made) a proper alternative approach would be as follows.

[116]Instead of dividing the period mid 1999 to June 2003 into three, it should be divided into two. Mr Shine should be compensated for the period from 1999 to the date of the institution of proceedings in January 2001; and thereafter for the period until the works were completed. For the first period, we think a figure of 75% of the rental of £55 is appropriate. We reach this figure on the basis that Mr Shine was living in very poor conditions throughout this period. He was without a bathroom and also had no gas supply, although this appears to have been at least in part because he turned it off himself. On the other hand, the correspondence seems to us to show that the Landlord was reasonably responsive to reasonable complaints, and if Mr. Shine had behaved more reasonably action would have been taken sooner. Under this head, accordingly, the award would be £3,217

[117]Thereafter, it seems to us that a very substantial discount should be awarded, since it is plain from the history that Mr. Shine was, indeed, extremely difficult; that he unreasonably refused to vacate the premises on numerous occasions; that as a result of his conduct injunctions had to be obtained; that he was in breach of court orders and that as a consequence there was not only a substantial delay in the completion of the works, but substantial additional costs have been incurred. As we have already made clear, we are quite unable to agree with the judge that Mr. Shine was "right to be difficult" or indeed to understand how the judge could say that Mr. Shine was entitled to disobey court orders, which the judge himself had made, or to behave in a way which failed to mitigate his damage.

[118]There are plainly several ways of approaching the question of damages for the post institution of proceedings period. We can either take the period which actually elapsed before the works were completed (some two and a half years) and substantially discount the rental of £60 per week; alternatively, we can approach the matter on the basis that we should assess the period of time in which the works would have been completed had Mr. Shine co-operated.

[119]The former approach would result in a period of two and a half years' rent at £60 per week (£7,800) which we would be minded to discount by 75% to take account of the fact that the works would have been completed in 6 to 9 months had Mr. Shine co-operated. This basis would produce an award of £1,950. The alternative approach would result in 9 months at £60 per week (£2340) a figure, which we would not have been minded to discount any further. Whilst acknowledging that, either way, the process of co-operation would have involved the inconvenience of temporary relocation, we do not think that any encouragement should be given to a tenant not to co-operate or to refuse to mitigate loss. We therefore take the lower figure. On this basis, the damages come out at(1) For the period to mid 1999 £3,000

(2) For the period from mid 1999 to 1 January 2001

£3,217

(3) Post 1 January 2001 £1,950 ______ Total damages £8,167

[120]The figure of £8,167 is very similar to the figure of £8053 identified in paragraph 115, which, on a different approach, includes the Landlord's acceptance of an award of £1,589 for the period 5 January 1995 to mid 1996. If we conduct the Wallace v Manchester City Council crosscheck, and take the average rental over the eight and a half years from 1995 to 2003 at £50 per week, an award of £8,000 represents an award of approximately 36% of the rent payable, and, if one excludes the first 18 months, the proportion increases to approximately 44%. These, we think, are figures well within the Wallace v Manchester City Council guidelines.

[121]Accordingly, the judge's award of £19,000 will be set aside and a figure for £8,000 will be substituted.

Issues arising post judgment: the argument on costs

[122]At the conclusion of the judgment on 10 June 2003, Mr Bowker attempted to raise a number of issues with the judge, one of which was the question of the costs, which had been reserved.

[123]The argument which Mr Bowker sought to advance - and which he advanced before us - was that at every interim hearing, at which the landlord considered it was entitled to its costs, a schedule was served and an application for costs was made. However, on each occasion, the judge preferred to adjourn the determination of costs to the trial. It was only at the hearing before Hart J that the court was prepared to make an interim order in the Landlord's favour.

[124]We have to say that at this point the transcript makes very unhappy reading indeed. We have already commented on the judge's conduct as evidenced by the transcripts, which we have of various parts of the hearings. We have already made an allowance for the fact that, because Mr. Shine was in person, the judge may have felt an obligation to be more interventionist and to ask more questions than he would have done had both sides been legally represented. However, having made every allowance for that fact, we find the judge's behaviour after judgment unacceptable.

[125]The judge interrupts Mr Bowker's first reference to the costs reserved during the interlocutory hearings to say: - If I reserve them, I reserve them for this hearing do I not? Counsel: Yes Judge Cotran: And I have dealt with them now. I grant all the costs of every hearing to him. Alright? Anything else you want me to deal with?” If I reserve them, I reserve them for this hearing do I not?

Counsel: Yes

[126]When Mr Bowker seeks to raise with the judge the extent to which those instructing him had been obliged to expend time and incur costs dealing with numerous irrelevant documents and issues raised by Mr. Shine the judge replies: - “Judge Cotran: The time taken by your solicitors or by you or by the defendant is their business. Counsel: Your Honour, with respect, no. I am asking for my costs to the extent to which I have been troubled by irrelevancies during these proceedings. Judge Cotran: I am not giving you any. Alright? Anything else you want?”

[127]The judge dealt equally peremptorily with Hart J's order for costs in the sum £1,500.00 in the Landlord's favour. He refused point blank to allow that figure to be deducted or set off from the award of damages. The exchange reads as follows: - Counsel: Your Honour has the order in the bundle. Judge Cotran: Yes I am just trying to find it...The appellant do pay 75% of the respondent's costs of the appeal summarily assessed in the sum of £1500. In the appeal. I cannot do anything about that. Counsel: Your Honour, yes you can, you can deduct them from Mr. Shine's damages. There is absolutely no reason why you cannot do that. Judge Cotran I can, but I will not. If you want to enforce that you can take what measures are necessary.

[128]In our judgment, the judge was plainly wrong not to reconsider the question of the reserved costs and not to set off the sum of £1,500 against the damages awarded. However, in rejecting both applications, his behaviour is unacceptable. He is both abrupt and discourteous. He makes it clear he is not prepared to entertain argument, and gives no reasons. By contrast, counsel behaves with courtesy throughout; despite what we have to say was severe provocation from the bench.

[129]If the transcripts we have read represent the way Judge Cotran habitually conducts himself in court, he should re-read them and reflect seriously on them. No doubt every judge has from time to time winced on reading an incautious or inappropriate intervention or aside. However, these transcripts go well beyond any momentary lapse in courtesy or incautious judicial intervention.

Reserved costs

[130]We turn to deal with the matters of which Mr. Bowker made complaint. In his skeleton argument prepared for the application for permission to appeal, Mr. Bowker identified the following hearings in relation to which he sought orders and which are identified by reference to the paragraph numbers in which they appear earlier in this judgment: - (1)14 March 2001 (paragraphs 34 and 35) (2) 10 and 14 December 2001 (paragraphs 50 to 52) (3) 15 July 2002 (paragraph 61) (4) 7 August 2002 (paragraph 62) (5) 30 August 2002 (paragraph 63) (6) 16 January 2003 (paragraph 65) (7) 20 January 2003 (paragraph 66).

[131]In oral argument before us, Mr Bowker accepted that he was in difficulties in relation to 14 March 2001, since, whilst the undertakings recorded an agreement that costs be reserved, the order itself stated that there should be no order as to costs. As to 10 December 2001 we take the view that the Landlord is entitled to its costs, as the application for an injunction was clearly rendered necessary by Mr. Shine's behaviour. The order for costs made in the Landlord's favour on 12 December 2001 was set aside by Hart J and it is not open to us to interfere with that order.

[132]The hearing on 15 July 2002 requiring Mr Shine to supply details of bed and breakfast accommodation and to vacate once accommodation had been identified was undoubtedly brought about by Mr. Shine's conduct, and in our judgment the Landlord is entitled to the costs reserved on that occasion. Similar considerations apply to the orders made on 7 and 30 August 2002, and 16 January 2003.

[133]We do not have the order made on 20 January 2003, and the only order in our bundle after that date (apart from the order under appeal) is the order dated 31 March 2003. This puts Mr. Bowker in difficulty. The order of 20 January 2003 appears simply to be for directions, and we make no order in relation to it. The orders of 30 January and 6 February would appear, at first blush to be orders, which Mr. Bowker could pray in aid, but as we do not have them, he has, very fairly, not pursued any application in relation to them. We deal below with the failure of the County Court to draw its orders.

[134]We therefore accede to Mr Bowkers's submission that the landlord have its costs of the hearings on 10 December 2001, 15 July 2002, 7 and 30 August 2002, and 16 January 2003, and that there be a detailed assessment of those costs by the District Judge in the County Court. The judge's refusal to deal with the question of reserved costs will be set aside and an order substituted in the terms above.

Additional costs incurred by the Landlord

[135]We are not minded, however, to make any order in relation to the costs incurred by the difficulties, which Mr. Shine made in relation to discovery, and the manner in which he dealt with documentation. A charity in the position of the Landlord in this case will, inevitably, have to deal with difficult tenants and with litigants in person. It is, in our view, part and parcel of this type of litigation that solicitors will, equally inevitably, have to spend time dealing with documentation which is immaterial to the proceedings. In a case, which does not come to this court, and in which the claimant succeeds below, the landlord is unlikely to recoup any costs so incurred. If and in so far the outcome of this appeal is that the landlord makes an application for its costs in this court and below, then any costs incurred in dealing with documentation or other unreasonable behaviour by Mr. Shine will fall to the part of the assessment made by the costs judge or the District Judge in the Shoreditch County Court. We do not, accordingly, think it appropriate to make a separate order in relation to costs incurred by way of excessive documentation produced by Mr. Shine in the proceedings below.

Setting off the costs ordered by Hart J against the award of damages

[136]The final matter relates to the judge's refusal to allow the landlord to set off against the award of damages the sum of £1,500.00 awarded by Hart J on Mr. Shine's appeal to the Chancery Division. The judge refused to deal with this on the basis that it was not his order, and that there was nothing he could do about it. We disagree. We were referred to section 72 of the County Courts Act 1984 and Civil Procedure Rules 44.3(9)(a). We are, however, of the view that since the order for costs made by Hart J was, in effect, an order made in the proceedings (albeit on appeal) there is absolutely no reason why those costs should not be offset against the award of damages to Mr. Shine, particularly in circumstances where Mr. Shine is patently impecunious, and if a set off is not directed, there is no way in which the order of Hart J would be enforced.

[137]We are reinforced in this view by the decision of this court in Lockley v National Blood Transfusion Service

[1992] 2 All ER 589

which, whilst dealing with such a similar set off in the context of the Legal Aid Act 1988 makes clear that such a set off is not different from and no more extensive than the set off available to or against parties who are not legally aided: - see the judgment of Scott LJ at

[1992] 2 All ER 589

at 593j.

[138]We therefore set aside the judge's refusal in this regard to offset the sum of £1,500.00 against the damages awarded, and give the landlord permission to do so.

Arguments put by and available to Mr Shine

[139]Before we conclude this judgment, we should record that Mr. Shine produced a Respondent's notice, which was, of course, very much out of time, and in which he sought to uphold the order of the judge on the following grounds: -(1) The landlord did not comply with their undertaking to carry out the emergency repairs given to Recorder Hoskinson on 14 March 2001;

(2) The landlord by their own admission on 9 June 2003 did not carry out the amounts of work to eradicate the inherent dampness in accordance with the reports of the court appointed independent surveyor Mr J Belk and as ordered throughout by His Honour Judge Cotran.

(3) My home is in a three year worse state of inherent dampness than it was when the proceedings began on 14 March 2001.

[140]The relief sought by Mr. Shine was accordingly: -(1) Leave to appeal the order His Honour Judge Cotran dated 10 June 2003.

(2) For leave to admit as evidence documents in Part C attached to the notice.

(3) The appellants to carry out the wants work (sic)

(4) Special damages £10 million and interest.

(5) Consequential directions, orders, and declarations.

[141]Although we read this document and its attachments, we declined to allow Mr. Shine to rely on it. Apart from the fact that it was substantially out of time, it added nothing to Mr. Shine's case, save to re-emphasise the lack of reality in his expectations.

[142]In the best traditions of the bar, Mr Bowker had produced for us as part of his skeleton argument a series of arguments which, he submitted, if Mr Shine had been represented, counsel would have put forward in opposition to the appeal. These were, firstly, that the appeal was in essence an attempt to go behind the judge's primary findings of fact: secondly that a refusal to accept alternative accommodation does not affect the question of damages for disrepair: see Lubren v London Borough of Lambeth (1N987) 20 HLR 165: thirdly, that Mr Downer's evidence should be ignored or treated with considerable caution: fourthly, that it was entirely reasonable for Mr. Shine to have disabled his gas supply prior to inspection in the light of Mr Belk's concerns about the tape around the gas cooker: and fifthly, the award for the approximately four year period from March 1999 to June 2003 was not manifestly excessive since it was only marginally above the average annual rent.

[143]The only point on which we need to comment is the reference to Lubren v London Borough of Lambeth, which Mr Bowker helpfully attached to his skeleton argument. In that case the tenancy dated from 1973 and defects began to appear from 1979. Thereafter conditions worsened at an accelerating pace and in 1983 two offers of alternative accommodation were made to the plaintiff, which she refused. By 1984 the conditions in the premises were appalling. The claimant moved out to alternative premises on the basis of an undertaking by the defendant to carry out repairs within a three-month period, but it was fourteen months before she was able to return. Furthermore, the alternative accommodation was infested with cockroaches. The tenant was awarded £5,000 by way of damages and the authority appealed.

[144]In the course of dismissing the appeal, Parker LJ commented that the fact that the offers of alternative accommodation were made but not taken up could not affect the question of damages. They were offers, he said, which so far as the court was aware: - not refused capriciously in any way and in my view that ground of appeal has no substance.

[145]In our judgment, the test has to be whether or not the offer of alternative accommodation was unreasonably refused. We understand Parker LJ to be saying that in not refusing the offers of alternative accommodation "capriciously" the tenant was not acting unreasonably. In any event, on the facts, the case can plainly be distinguished. Mr. Shine was offered accommodation which was suitable, to which he unreasonably refused to go. He simply refused to vacate. As we have already indicated, his conduct in this respect was, in our judgment, not only unreasonable but, of course, in breach of the orders of the court.

Conclusion

[146]In all these circumstances, and for the reasons we have given, the appeal will be allowed. The judge's award will be set aside and, subject to further argument, we would propose to make the following orders: -(1) The appeal will be allowed.

(2) Save for paragraph 9 (which relates to the Appellant / Defendant's Part 20 claim for possession) the order of HH Judge Cotran dated 10 June 2003 will be set aside.

(3) There will be judgment for the Claimant/Respondent with damages in the sum of £8,000 payable within 28 days.

(4) The Appellant/Defendant shall be entitled to set off against the sum of £8,000 the sum of £1,500 awarded to it by Hart J on 7 March 2003 and representing 75% of the Appellant/Defendant's costs of an interlocutory appeal made in the proceedings by the Claimant / Respondent to the Chancery Division of the High Court.

(5) The costs incurred by the Appellant/Defendant relating to the interlocutory hearings on 10 December 2001, 15 July 2002, 7 and 30 August 2002 and 16 January 2003 and on each of those ordered by HH Judge Cotran to be reserved shall (in default of agreement as to their amount) be subject to a detailed assessment by a district judge of the Shoreditch County Court and paid by the Claimant/Respondent to the Appellant/Defendant.

Footnote: the state of the orders emerging from the Shoreditch County Court

[147]Even with Mr. Bowker's considerable assistance (he has been in this case throughout), we have had substantial difficulty in piecing together the history of this case from the orders made by the Shoreditch County Court. This is because, in many instances, the orders have simply not been drawn by the court. A number of the orders in the bundle are manuscript drafts in Mr. Bowker's handwriting.

[148]We have no doubt that the Shoreditch County Court is a busy and under-resourced court. No doubt it has an inadequate number of staff and a disproportionate number of housing cases and possession actions. Nonetheless, it is simply unacceptable for any court not to draw the orders made by its judges. Ultimately, the responsibility for orders being properly and timeously drawn lies with the judge, and it may be that apart from orders which are in standard form, a more proactive stance by the local judiciary is required to ensure that this occurs.

[149]This is, however, a matter for the Court Service, and we propose to send a copy of this judgment to the Circuit Administrator for the Sourth Eastern Circuit for his consideration.

order

one was to apply back to the judge under CPR 23.11.2 for the matter to be relisted. On such an application he would have to satisfy the court that it had been unfair to make the order in his absence, given the existence of a case in another court, which Mr Shine had to attend. Alternatively, he could apply to vary the injunction under the liberty granted to him for that purpose. Having regard to those protections, it does not seem to me, notwithstanding the fact that Mr Shine may have been unavoidably unable to attend on 14 December, that it would be right for this court to disturb those parts of the order of His Honour Judge Cotran. 21. However, as indicated by counsel for the defendant during the course of argument, I do consider that it would be right, although perhaps unnecessary in view of the defendant's pragmatic attitude to this matter, that I should impose a stay on the operation of the injunction sufficient to enable Mr Shine, if he so chooses, to bring the matter back before Judge Cotran either on an application to rehear the matter, or an application that the injunction should be varied. Since the injunction is in terms to run from 14 January until 11 March, it seems to me probably appropriate, subject to submissions from the defendant, that I should, at the same time as imposing the stay, vary the injunction so that it both starts and finishes at dates which will give it some purpose in the future. I will hear submissions on that.”