Rhodes v Kensington Housing Trust [2004] EWCA Civ 692

Case No CC/2004/PTA/0246[2004] EWCA Civ 692
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEENS BENCH DIVISION
(MR JUSTICE GRIGSON)
Venue Royal Courts of JusticeDate 17th May 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE NEUBERGER
Between
DAVID RHODESApplicant-v-
Between
KENSINGTON HOUSING TRUSTRespondent
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
THE APPLICANT APPEARED IN PERSON. for in person for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
J U D G M E N T

LORD JUSTICE NEUBERGER:

[1]This is an application for permission to appeal the refusal of Grigson J to continue a stay of execution of an order. It comes on urgently before me for consideration.[2]The application is made by Mr David Rhodes who appears in person. Mr Rhodes was granted a tenancy of 80c Lancaster Road, London W11. I understand that it is a flat on the top floor of a building.[3]His landlord is Kensington Housing Trust. Under his tenancy agreement, the landlord, who I shall call "the Trust", is under an obligation not to interfere with his enjoyment of the property except where access is required to inspect the condition or to carry out repairs.[4]The Trust also covenants to keep the property and the exterior structure in repair, and in particular to keep the electrical installations in repair. Mr Rhodes covenants among other things to allow the Trust's employees or contractors access at all reasonable times to inspect and carry out repairs; it is provided that he can normally expect 24 hours' notice of any such inspections and repairs.[5]There have been possession proceedings brought by the Trust against Mr Rhodes and a counterclaim brought by Mr Rhodes against the Trust. I put those on one side, at least for the moment, and move forward to the 27th March of this year when a fire occurred in the flat.[6]The fire resulted in the Trust applying for an order requiring Mr Rhodes to vacate the flat because of its state. The Trust made an offer of temporary alternative accommodation at 35 Faraday House.[7]The matter could not be resolved amicably, and accordingly the Trust issued an application which came before HHJ Crawford Lindsay, QC. He made an order on the 7th April and another order on the 14th April.[8]On the 14th April, the order he made, included the following:
"3. Mr Rhodes will leave 80c Lancaster Road on 8th April 2004 and will be rehoused by the claimants at 35 Faraday House."
[9]Paragraph 4 contended a procedure whereby Mr Rhodes could collect the key of 35 Faraday House. The next two paragraphs where to this effect:
"5. Mr Rhodes will be allowed access to 80c Lancaster Road from 11 am on 8th April 2004 until 10 am on 19th April 2004 in order to sort out his personal possessions. Mr Rhodes will allow Mr Samuels access to 80c Lancaster Road on 14th April 2004 to inspect the premises. "6. These applications are to be re-listed at 10 am on 19th April 2004."
[10]The applications were duly listed on 19th April 2004, and on that date an order was made providing:
"On 19th April 2004, the court considered an application for an injunction. The court ordered that David Rhodes is forbidden ... : "1 (i) from visiting 80 Lancaster Road without the claimant's or the court's permission; (ii) from interfering with or delaying the inspection and/or repair of 80 Lancaster Road ... by the claimant; (iii) from causing or threatening violence (by words or conduct) to any of the claimant's servants or agents. (iv) From causing (by words or conduct) any nuisance or annoyance to any of the claimant's servants or agents."
[11]It was also ordered:
"2. Mr David Rhodes shall give the claimant exclusive possession of 80c Lancaster Road by 12 noon on Friday 23rd April 2004 and thereafter for a period of four months ending at 12 noon on 23rd August 2004."
[12]I have a copy of what I understand to be counsel's note of HHJ Lindsay's judgment on that day. HHJ Lindsay stayed the effect of that order to enable Mr Rhodes to have permission to appeal. He also made certain amendments to that order on the 4th May 2004.[13]The stay granted by HHJ Lindsay was continued on a couple of occasions in the High Court, to which the appeal lay, until Grigson J discharged it on the 13th May 2004, with effect from 17th May 2004. Again, I have a copy of Grigson J's judgment, prepared by counsel for the Trust as I understand it.[14]The application that Mr Rhodes makes is for permission to appeal the decision of Grigson J, and obviously if I grant permission to appeal, for the stay that is to be discharged with the effect of 12 noon today to be reimposed pending the appeal being heard.[15]Mr Rhodes has made his submissions clearly, moderately and succinctly. It appears that he has two proposed grounds for challenging HHJ Lindsay's primary decision to require him to vacate, albeit temporarily, the flat at 80c Lancaster Road.[16]The first ground is that the judge was wrong to find that the flat was effectively uninhabitable, which was of course the basis for him making the order. Secondly, that the effect of the judge's decision was to block, to use Mr Rhodes' word, Mr Rhodes' application for the electricity to be restored to his flat.[17]I think it is important to consider those two grounds because if his ability to challenge HHJ Lindsay's primary decision to require him to vacate the flat is hopeless, then any basis for granting him the stay falls away and Grigson J's removal of the stay must stand.[18]I am afraid from Mr Rhodes' point of view that strongly as he feels about it, HHJ Lindsay's basic decision to require him to vacate the flat is plainly unassailable.[19]I turn first to the contention that HHJ Lindsay should not have accepted that the premises were uninhabitable. In this connection, HHJ Lindsay had two pieces of very strong evidence which he was not merely entitled to rely on, but which he was effectively bound to accept in the absence of any cogent evidence to the contrary.[20]That evidence was first, evidence from Mr Minda Singh, a Principal Surveyor employed by the Trust; and secondly, a report prepared by an independent Chartered Surveyor, Mr Charles Samuels of OSEI Design Associates.[21]Mr Singh had reported on the 5th April 2004 about the state of the premises and recommended that:
"Access to the flat is prohibited to all (including the tenant) but building professionals for health and safety reasons. All make safe works be carried out urgently. Full access be provided and the flat left in charge of the maintenance department. All tenant's property to be removed..."
[22]He provided a witness statement which fleshed that out, explaining in paragraph 6 that:
"Persons entering the property will be exposed to the risk of injuring themselves on the debris strewn throughout the property."
He also said that persons would be:
"...exposed to the risk of parts of the damaged ceilings falling on top of them."
He further expressed the view that:
"The fire may have caused the property to be structurally unsafe."
He also said that there was a: "...serious risk to the tenants of 80a and 80b..." because of melting to plastic insulation surrounding the electric cables and from heat from the fire melting plastic plumbing pipes. He then set out the work that needed to be done and said that it would take five to six weeks.[23]Mr Samuels visited the property. He was refused access by Mr Rhodes. But having inspected the communal stairs and landing, he referred to:
"...extensive smoke damage to the walls and ceilings and the front windows..."
He also stated that it was "likely" in his view that:
"...there is extensive fire damage within the flat."
It was also his:
"...professional opinion that the flat in its fire damaged state would pose a potential risk to health and safety and should not be occupied until a full assessment of the damage has been made and remedial works undertaken."
It was further his opinion that:
"...given the extent of damage caused, the required remedial works cannot and should not be carried out with the tenant in occupation as this would be a major risk to health and safety for the occupant and visitors."
[24]Against that, the judge had the contrary view of Mr Rhodes. Mr Rhodes, tells me and I have no reason to doubt this, has been self-employed in the building work, and knows about this sort of thing. Either he gave evidence to the judge to support his view, based on his experience, that the views expressed in the two documents I read from were wrong, or he did not. It does not matter which is the case.[25]The judge was clearly entitled to rely upon the evidence of an employee of the Trust and an independent surveyor. In my judgment, it would have been a very curious outcome if the judge had not relied on that evidence in light of the absence of any independent evidence to the contrary. An appeal against his decision on the first ground is hopeless.[26]So far as the other ground is concerned, given that the judge had concluded that Mr Rhodes should vacate the property, albeit temporarily, it seems to me that it would have been absurd for the judge to go on to consider Mr Rhodes' application for electricity to be reinstated. Mr Rhodes was to be out of the flat, albeit only for a period. It would have been ludicrous for the judge to require, or even contemplate requiring, the Trust to install electricity in the meantime.[27]Quite apart from this, as the report which I have read from Mr Samuels demonstrates, the electrical system was not safe. One can well see that, even if the judge might otherwise think it right to require electricity to be reinstated, he would not have done so in the light of the potentially perilous state of the electricity system.[28]Those are the two grounds raised by Mr Rhodes for challenging HHJ Lindsay's decision. I am bound to say that they stand no chance of success. In those circumstances unless I can think of any points which, bearing in mind Mr~Rhodes is a litigant in person, could and should be taken in his favour; it seems to me to follow that Grigson J's decision to discharge the stay was plainly right.[29]I have considered whether there are any grounds which Mr Rhodes could raise. I had wondered whether the Trust was actually entitled to seek possession of his flat, albeit temporarily, for the purpose of carrying out the works in light of the terms of the Tenancy Agreement. It does seem to me that a provision such as Clause 3.11, which I have read from, does carry with it an obligation on the tenant to vacate where either inspection or works cannot be carried out with him being present, which is what the evidence indicates here.[30]Furthermore, I would have thought that there is a powerful case for saying that even if there had been no such terms in this tenancy agreement, some term should be applied forbidding him to occupy premises and/or requiring him temporarily to vacate premises if, through the fire or some other cause, they have become unsafe or in such a state as to require him to vacate while repair works are carried out.[31]In those circumstances, I am quite satisfied that the decision of Grigson J was plainly right and this application must be refused.

Order

Application refused.