Lewis & Anor v Kush Housing Association

J U D G M E N T

Tuesday, 12th April 2005

1. LORD JUSTICE JONATHAN PARKER: Before the court today are two applications by Mr Erskine Lewis, who appears in person. The first of the two applications, No 2623, is an application for permission to appeal against an order made by His Honour Judge Latham on 26th November 2004 dismissing Mr Lewis' appeal from a possession order in respect of a flat at 252C Dalston Lane, London, E8, made by District Judge Manners on 17th March 2004.

2. The second application, No 2715, is an application for permission to appeal from another order made by His Honour Judge Latham on 26th November 2004. By this further order the judge dismissed a claim brought by Mr Lewis against Kush Housing Association Limited ("KHA"), the owners of the flat, for alleged breach of its obligations in respect of the repair of the flat.

3. The disrepair claim (as I shall call it) was listed on the fast track and in the normal course an appeal against the judge's order dismissing that claim would be heard by the High Court. However, for reasons which will appear, it was earlier directed that the application for permission to appeal, that is to say application No 2715, should be heard together with application No 2623 in the Court of Appeal.

4. Mr Lewis also seeks a stay of execution of the possession order and in relation to each substantive application he seeks further orders as set out in section 9 of the respective Appellant's Notices, including orders for specific disclosure. Mr Lewis also applies for permission to rely upon additional evidence in support primarily of the disrepair claim.

5. The background to the two substantive applications is briefly as follows.

6. Mr Lewis was, together with his former wife, Mrs Gillian Lewis, a tenant under an assured periodic tenancy of the flat granted by KHA. Mr and Mrs Lewis are now divorced and Mrs Lewis is living elsewhere.

7. On 3rd January 2003 Mr Lewis commenced the disrepair claim against KHA, alleging various breaches of the landlord's obligations of quiet enjoyment and of repair. He further claimed that KHA had charged excessive service charges and had permitted Mr Lewis' neighbour, Mr Miller, who resided at 252B Dalston Lane, to commit various nuisances.

8. The course of the proceedings does not appear to have been very smooth in that at least 13 interim orders appear to have been made, during which time the pleadings were amended. At one stage the disrepair claim was struck out, but on the 25th June 2004 it was reinstated by His Honour Judge Cotran.

9. On 3rd February 2003, that is to say whilst the disrepair claim was pending, KHA issued possession proceedings claiming possession of the flat on the ground of arrears of rent (ground 8 in Schedule 2 to the Housing Act 1988). By his defence to the possession claim, Mr Lewis asserted that the rent arrears were the result of delays in receiving Housing Benefit from the local authority, the London Borough of Hackney. Mr Lewis also relied upon the fact that the disrepair claim was pending, on the basis that should that claim succeed he would be entitled to substantial damages which he could set off against arrears of rent.

10. The possession claim was heard by District Judge Manners on 31st March 2004, at which time the disrepair claim stood struck out. Before District Judge Manners KHA was represented by Mr Andrew Lane of counsel and Mr Lewis was represented by Miss Patricia Tueje of counsel. Following the hearing before the District Judge counsel agreed a note of what had transpired. Paragraphs 6 and 7 of that agreed note read as follows:

"6. In a short judgment DJ Manners stated that the rent account produced in court did show the true level of arrears as it had been consolidated with the previous rent account.

"7. DJ Manners had observed during cross-examination that any missing housing benefit payments would not reduce the level of arrears below 8 weeks."

The reference to 8 weeks is a reference to the minimum period in respect of which a claim for possession on ground 8 in Schedule 2 to the 1988 Act can be brought.

11. Counsel's agreed note goes on to record (in paragraph 9) that District Judge Manners had observed that Mr Lewis' disrepair claim had been struck out (a statement which was correct at the time it was made, although as I indicated earlier the disrepair claim was subsequently reinstated).

12. On 2nd April 2004 His Honour Judge Cotran granted Mr Lewis permission to appeal against the possession order made by District Judge Manners. Given the close interconnection between the disrepair claim and the possession claim, it was (very sensibly, if I may say so) arranged that His Honour Judge Latham should hear both the appeal against the possession order and the disrepair claim before delivering judgment on either of them.

13. The trial of the disrepair claim took place between 4th and 9th December 2004. At the conclusion of that hearing, His Honour Judge Latham reserved judgment pending the hearing of the appeal against the possession order. That appeal was heard on 26th November 2004 and at the conclusion of that hearing His Honour Judge Latham delivered a single judgment dealing both with the disrepair claim and with the appeal against the possession order. Having delivered that judgment the judge made the orders in respect of which permission to appeal is now sought.

14. Both sides were represented by counsel, both on the trial of the disrepair claim and on the appeal against the possession order. Counsel for KHA was Mr Holbrook. Counsel for Mr Lewis was Mr John.

15. On the disrepair claim the judge heard evidence from KHA's housing officer, Mr Collins, and from Mr Lewis. Also before the judge was a report by a single joint expert, Mr Mark Rogers, relating to the state of repair of the flat.

16. In his judgment the judge turned first to the appeal against the possession order. On that appeal the judge addressed all issues other than any question of set-off for damages for disrepair awarded in respect of the disrepair claim. The judge recorded that it was not clear from the agreed note of counsel who had appeared before the district judge whether the district judge had seen the formal Defence and Counterclaim which was at some stage delivered on behalf of Mr Lewis. However, the judge went on to record that counsel for Mr Lewis had conceded that:

"... that does not make any real difference because it is clear from counsels' note that all the points that Mr Lewis wanted to raise in his defence were canvassed at the hearing before District Judge Manners."

17. The judge further recorded that there was nothing in the agreed note to suggest that at the hearing before the district judge counsel for Mr Lewis, Miss Tueje, had called Mr Lewis to give evidence or had put in any document in support of his claim. Accordingly, as the judge observed, there was no evidence from Mr Lewis' side to contradict or challenge the reliability of KHA's evidence as to the arrears of rent.

18. After referring to paragraphs 6 and 7 of counsel's agreed note (which I quoted earlier) the judge continued:

"This appeal is a review, it is not a re-hearing. [Mr Lewis] has to show that the Learned District Judge made an error of law in some way. That is working on the basis of the evidence that was before the District Judge so far as it can be reconstructed. There is no challenge that if the arrears were £2,131.00 at the date of the judgment that was sufficient for a Ground 8 finding for possession, because the rent at that time [that is, of course, the rent under the tenancy] was £86.50 a week and eight weeks rent was £692.00."

19. The judge then turned to the position at the date of the notice seeking possession, 12th February 2004. He once again concluded that the arrears were greater than the statutory minimum for granting possession under ground 8. He accordingly concluded as follows:

"... there is nothing before me to show that the District Judge was wrong to conclude that as at the 12th January 2004, the date of seeking possession, and as at the 17th March 2004, the date of the hearing, there is more than eight weeks rent outstanding."

20. The judge went on to observe that counsel for Mr Lewis had further conceded:

"... that what I have called the bottom line figures in relation to the District Judge's decision are not altered by anything that he has been able to put forward."

21. The judge then turned to Mr Lewis' reliance on delays by the London Borough of Hackney in paying Housing Benefit. The judge concluded that it was clear that a sum of £1,557, representing part of a payment of Housing Benefit to Mr Lewis, was paid to KHA on 22nd January 2004. However, he pointed out that that credit would not suffice to bring the level of arrears below the statutory minimum. As to other payments of Housing Benefit to Mr Lewis the judge said this:

"The other payments were sent direct to Mr Lewis, and one of the problems in this case is that Mr Lewis has not been paying Housing Benefit over to [KHA]."

22. The judge continued:

"I think that is all I need to say about grounds pursued in this appeal, other than credit for set off for any damages for disrepair in the parallel action. For all the reasons I have explained, it is clear to me, on this review, that apart from credit for damages for disrepair... the District Judge fell into error, for the reasons that I have explained. So apart from issues of damages for disrepair, this appeal will be dismissed."

23. The judge then turned to the disrepair claim. After referring to the pleadings, the judge observed that it was agreed between counsel that if the appeal against the possession order were to be dismissed then Mr Lewis was a "tolerated trespasser" from 31st March 2004 when District Judge Manners' possession order took effect; and that accordingly he could not succeed in relation to any claim for damages for disrepair relating to any period after that date.

24. In relation to the period prior to 31st March 2004 the judge recorded that KHA's defence was that its obligation to repair, or to pay damages for disrepair, would only arise if it were given notice of the alleged disrepair and if it had also been given a reasonable opportunity to carry out the repairs of which it had received notice. KHA alleged that no notice had been given by Mr Lewis of the disrepair of which he was then complaining, and that in any event, Mr Lewis, far from giving KHA a reasonable opportunity to carry out repairs, had adopted highly obstructive tactics which in effect blocked any attempt by KHA to carry out any repairs.

25. As to the state of repair of the flat, Mr Rogers' report expressed the opinion that there were elements of disrepair in the flat and that to remedy such disrepair would cost in the region of £2,600. At the hearing counsel for Mr Lewis contended that the cost of putting right the disrepair would amount to some £5,000 in total (being £2,500 in respect of the period prior to 31st March 2004 and a further £2,500 in respect of the period after that date). The judge recorded that KHA's counsel had not disputed that if liability were established for damages for disrepair a sum in the order of £5,000 would be appropriate.

26. Having recited counsel's agreement that if the possession order were to stand then no claim for disrepair could be maintained in relation to the period after 31st March 2004, the judge turned to the position in relation to the period prior to that date. The judge noted that KHA had failed to comply with an earlier interlocutory direction by the court that it submit a report by a registered gas installer as to the state of repair of the gas boiler in the flat. He noted KHA's reasons for not producing such a report, which were based essentially on grounds of cost.

27. The judge continued:

"In the event, counsel for [Mr Lewis]... has not raised any objection or application for adjournment to obtain the report required by the consent order. So despite recording the court's disappointment that [KHA] did not honour their agreement I am not actually asked to do anything to remedy that."

28. The judge then summarised the oral evidence of Mr Lewis and Mr Collins. Having done so he turned to the question of credibility saying this:

"There are a number of important credibility issues that are focused in the differences of recollection between Mr Lewis and Mr Collins. I prefer the evidence of Mr Collins to the evidence of the defendant.

...

"In my judgment, Mr Lewis' attitude is shown very vividly by the correspondence that was put to him in cross-examination. It is clear to me that having started with what in subjective terms Mr Lewis believed to be a grievance about many matters surrounding his tenancy and repairs to his flat, Mr Lewis has become progressively more unreasonably hostile to [KHA], so that by the time Mr Collins came on the scene he was unable or unwilling to respond to a friendly cooperative initiative by the landlords to try to investigate and discover what his grievances were and set them right. I find that in that pattern Mr Lewis unreasonably left court on the 14th July 2004 when it became clear that His Honour Judge Cotran was going to require Mr Lewis to give facilities for an inspection of the premises and he simply wanted to out flank that."

29. Later the judge said this:

"... Mr Lewis was at best evasive about how much money he has put on one side as a result of receiving Housing Benefit from the London Borough of Hackney but not paying that to the landlords to enable them to run their business and carry out necessary repairs. That is another vivid example of, as I find, Mr Lewis' unreasonable attitude."

30. The judge, having accepted that Mr Rogers' report did reveal the existence of some elements of disrepair continued:

"My conclusion, from my findings on credibility, my findings as to Mr Lewis' attitude, from his demeanour, from the correspondence, and from the whole history of the case, is that I do not accept that Mr Lewis made the complaints that he alleges, where those are disputed by the defendants. From his whole history that I have explained I find that far from giving the defendants a reasonable opportunity to inspect and repair alleged disrepair, by contrast Mr Lewis' hostility to [KHA] has developed to the extent that he has blocked proper reasonable and friendly initiatives by [KHA] to attempt to investigate and remedy his complaints of disrepair insofar as they could be validated."

31. The judge went on to express the view that Mr Lewis' tactics in complaining of disrepair and blocking attempts by KHA to investigate and remedy any disrepair were prompted by a desire to avoid or delay payment of rent as long as possible. The judge accordingly dismissed the repair claim and in consequence he dismissed the appeal against the possession order.

32. So much for the factual and procedural background.

33. I turn first to Mr Lewis' application to rely on additional evidence. He seeks to adduce additional evidence in order to reopen the issues of fact decided by the judge in relation to the disrepair claim. In particular he seeks to establish by this additional evidence that he repeatedly complained to KHA about specific elements of disrepair as pleaded in support of the disrepair claim. In the course of his oral submissions he has taken me through a number of the documents included in the bundle of additional documentary evidence, the subject of his application.

34. In my judgment, however, it is quite clear that this application falls foul of the well-known principles established by the decision of this court in Ladd v Marshall[1954] 1 WLR 1489. First and foremost, no good reason has been put forward why the evidence now sought to be adduced, in so far as it is relevant to the issues of fact with which the judge was concerned, could not, with reasonable diligence, have been obtained for use at the trial. Secondly, it does not seem to me that such evidence, even if adduced, would be likely to have any significant impact upon the result of the case. The crux of the whole matter, as it seems to me, lies in the judge's findings of obstructive and intransigent behaviour by Mr Lewis in blocking all attempts by KHA to act reasonably in its dealings with him.

35. Accordingly, despite what Mr Lewis has said in support of the application to adduce further evidence, I cannot see any real prospect of that application succeeding before the full court on a substantive appeal against the dismissal of the disrepair claim should permission for such an appeal be granted.

36. I accordingly turn to the substance of the matter, and, firstly, to application 2715 and the dismissal of the disrepair claim. The grounds of appeal are set out in section 7 of the appellant's notice. There are seven grounds and they read as follows:

"1. An absence of evidence supporting findings of fact, resulting in a perverse decision.

2. A failure to resolve conflicts of evidence in or opinion that are central to the issues in the case.

3. A failure to take account of material facts.

4. Serious procedural and other irregularities resulted in injustice."

37. Then 5, 6 and 7, invoke or seek to invoke Articles 6, 8 and 14 of the ECHR. Article 6 is, of course, the right to a fair trial, Article 8 is the right to respect for private and family life. Article 14 relates to prohibition of discrimination.

38. As noted earlier, section 9 of the Appellant's Notice seeks further orders, including orders for specific disclosure of various documents described in the notice.

39. In support of application 2715 Mr Lewis has submitted a detailed written skeleton argument on which he has elaborated in the course of his helpful oral submissions. He begins by reminding me of the overriding objective as set out in CPR 1.1 and 1.4. He submits that the court should have had before it evidence from a statutorily recognised body having expertise in the installation and maintenance of gas heating systems such as the Council of Registered Gas Installers (CORGI), and that the absence of such evidence placed him at a disadvantage. He submits that the judge was unjust in finding him to be evasive, unreasonable and uncooperative; in finding that he refused access for repairs when in fact no repairs were possible. He relies on Mr Rogers' report in identifying defects in the gas installations, in particular the gas boiler and flue. He asserts that other flats in the building suffer from similar defects. He submits that he is entitled to disclosure by KHA of documents relating to all such installations from the commencement of the various tenancies, in particular the initial certificates following installation. He asserts that he has been without heating and hot water for a period, during which he was suffering from a shoulder complaint; and that he is continuing to incur losses in respect of the provision of alternative facilities. He also asserts that he is still trying to recover Housing Benefit payments from 2003 and 2004 which remain unpaid.

40. He refers to a report from CORGI which was apparently provided after the conclusion of the trial of the disrepair claim, but before delivery of judgment. He submits that he ought to have had an opportunity to cross-examine a representative of CORGI. He submits that it was unfair of the judge not to impose any sanction on KHA for its failure to comply with the interlocutory order to provide an expert report. He also refers to an order made in his divorce proceedings which provided for the transfer of the tenancy of the flat into his sole name on payment of a lump sum and to alleged criminal damage by his neighbour, Mr Miller for which he contends that KHA is in some way responsible by reason of an alleged failure to provide Mr Miller with outreach mental health care. Mr Lewis contends that he has endured serious breaches of KHA's covenant for quiet enjoyment due to Mr Miller's untenant-like behaviour.

41. Mr Lewis seeks an appeal by way of rehearing due, as he contends, to the importance of compliance by landlords with statutory duties relating to the installation of gas and electrical systems.

42. He asserts that he is entitled to an award of damages in the region of £10,000, sufficient, in other words, to extinguish the rent arrears. He also makes a number of further points in his skeleton and he has made further points orally which I have also taken into account in reaching my decision.

43. In my judgment, despite everything that Mr Lewis has said, both in writing and orally, there are no arguable grounds with interfering with the judge's findings of fact on the relevant issues arising in relation to the disrepair claim; nor is there any substance in his other complaints about the judgment on that claim. I, accordingly, conclude that application 2715 should be dismissed on the basis that the proposed appeal has no real prospect of success.

44. I turn, then, to application 2623 relating to the possession order. The grounds of appeal, as set out in the appellant's notice on this application, are similar to, although not identical with, the grounds of appeal in application 2715. They read as follows:

"1. An absence of evidence supporting findings of fact, resulting in a perverse decision.

2. A failure to resolve conflicts of evidence in or opinion that are central to issues in the case.

3. A failure to take account of material facts.

4. A failure to admit new evidence.

5. Serious procedural and other irregularities resulted in injustice."

45. Then 6, 7 and 8 seek to invoke Articles 6, 8 and 14 of the ECHR.

46. Once again Mr Lewis has helpfully provided a detailed skeleton argument which has formed the basis of his oral submissions.

47. As in the case of application 2715 Mr Lewis begins by reminding me of the overriding objective as set out in CPR 1.1 and 1.4. He complains that he has had no opportunity to give evidence (although I note that both before the district judge and before the judge he was represented by counsel). He submits that the arrears statement before the district judge did not bring into account all the payments made by way of Housing Benefit in the year 2003. He submits that KHA's claim form did not comply with the CPR in that it failed to give sufficient particulars of the alleged rent arrears and relying on counsel's agreed note of the hearing before the district judge that the possession order was made against a background of uncertainty as to whether a formal defence and counterclaim had been delivered. He asserts that he has held back payments of rent in order to fund this litigation (including the obtaining of expert opinions).

48. Mr Lewis points out that no transcript of the hearing before the district judge is available. He relies, once again, on Mr Rogers' report as establishing that the flat was at all material times in a state of repair.

49. He submits that the judge was wrong to find that he had behaved unreasonably in insisting that his former wife's father be excluded from the hearing before the district judge.

50. He also refers, once again, to KHA's failure to comply with the interlocutory order to provide an expert report and to the fact that the judge did not impose any sanction on KHA in that respect.

51. He submits that the judge was wrong to prefer the evidence of Mr Collins to his own evidence.

52. He refers once again to the activities of Mr Miller in allegedly causing criminal damage to the common parts in the building.

53. Finally, he submits that he is entitled to set off any award of damages on the disrepair claim against the rent arrears thereby extinguishing those arrears.

54. As in the case of application 2715, Mr Lewis has made a number of further points which I have also taken into account in reaching my decision.

55. As I pointed out to Mr Lewis in the course of his oral submissions, application 2623 is an application for permission for a second appeal and accordingly the provisions of CPR 52.13(2) apply. In my judgment the application fails to meet the requirements of the CPR in that respect. The proposed second appeal raises no general point of principle or practice; nor, in my judgment, is there any other compelling reason why the Court of Appeal should hear it. In any event the proposed appeal has, in my judgment, no real prospect of success. Mr Lewis' various complaints have, in my judgment, no substance in them.

56. Accordingly, despite the submissions which Mr Lewis has made, both on paper and orally, I am satisfied that both substantive applications must be dismissed. In the circumstances no question of any stay arises.

57. For completeness I should also make it clear that the dismissal of the two applications for permission to appeal also covers the ancillary applications for further orders as set out in section 9 of the respective Appellant's Notices. Those applications too are dismissed.

ORDER: applications dismissed