Heffernan v London Borough of Hackney

This is an appeal by Mr David Heffernan (“Mr Heffernan”) with the permission of Dyson LJ, which was granted as long ago as 26 October 2006, against the order of HHJ Simpson dated 15 April 2005, by which he dismissed a claim for damages. That claim, which was for over £100,000, had been brought by Mr Heffernan against the London Borough of Hackney (“the council”) in the Mayor and City of London County Court.

On 27 January 2009 the council filed a Respondent’s Notice, which was, in fact, a Notice of Cross Appeal. It was out of time by a considerable margin. On 19 February 2009 Lloyd LJ granted the council permission to file the Respondents’ Notice out of time, but the issue of whether the council should have permission to cross-appeal on the points it raised was left to the court hearing the appeal. We granted permission to the council and heard oral submissions from Mr Broatch (for Mr Heffernan) on the issues raised. However, in my view, for the reasons I set out below, there is no need to deal with the cross-appeal.

The case concerns a house within the area of the council. It is at 16 Penhurst Road, London E9 (“the property”). It is a Victorian property which had been divided into two flats. Mr Heffernan bought the freehold of the property in 1991. At the time the upper maisonette was occupied by a Rent Act protected tenant and the lower flat was vacant.

There was a history of disputes between the tenant of the upper flat and Mr Heffernan about payment of rent and the repair of the flat, which went on from 1991 until 1998 and involved County Court proceedings. Mr Heffernan asserted that the non-payment of rent by the tenant (whose rent was covered by housing benefit) meant that he could not do any necessary repairs to the property. However, Mr Heffernan insisted that the repairs needed were modest.

On 16 September 1996 the council served four notices on Mr Heffernan, as the freehold owner of the property, pursuant to the provisions of Part VI of the Housing Act 1985, as amended (“the 1985 Act”). The notices were served under the terms of sections 189(1), 189(1A), 190(1)(a) and 372 of the 1985 Act.

The first notice (under s.189(1)), stated that the basement flat was unfit for human habitation for the reasons set out in Schedule 1 to the notice. The notice required Mr Heffernan to carry out the repairs identified in Schedule 2 to the notice, which were to be completed within 3 months of 16 October 1996.

The second notice (under s.189(1A)), stated that the exterior of the house, in the areas of the basement and ground floor flats, required repairs and that the flats were unfit for human habitation. The reasons were set out in Schedule 1. The repairs required were identified in Schedule 2 and Mr Heffernan was given 3 months to do them from 16 October 1996.

The third notice (under s.190(1)(a)), stated that the basement and ground floor flats, in a house in multiple occupation, although not unfit for human habitation, were in such a state of disrepair that substantial repairs were necessary to bring the flats up to a reasonable standard, having regard to the age, character and location of the property. The repairs needed were identified in a schedule to the notice and Mr Heffernan was again given 3 months from 16 October 1996 to do the work.

The last notice (under s.372(3)), referred to the whole house and stated that the condition of the house was defective in consequence of neglect, because of a failure to comply with the requirements set out in schedule 1 to the notice. Those set out requirements that were to be found in the Housing (Management of Houses in Multiple Occupation) Regulations 1990 (SI 830 of 1990). The notice required Mr Heffernan to perform the repairs set out in schedule 2 to the notice, within 3 months of 16 October 1996.

Under the terms of sections 189 and 190, the council was required to serve a copy of any notice served under those sections upon any other person having an interest in the dwelling house concerned, such as a mortgagee. At the time, Mr Heffernan had a loan from the Allied Irish Bank which was secured by a mortgage on the property. Before the judge, it was assumed that the notices under those sections had not been served on Allied Irish Bank, although, as I explain below, there may be some doubt about this. Under s.372(4) of the 1985 Act a council that has served a notice on a house owner under section 372(1) must inform any other person who, to the knowledge of the council, is a mortgagee of the property. As I have already indicated, the council knew that Allied Irish Bank was the mortgagee. Again, the case before the judge proceeded on the basis that the council had not informed the bank that a section 372 notice had been served on Mr Heffernan.

Mr Heffernan did not at that stage carry out the repairs as required by the four notices. Nor did he immediately appeal against the repair notices served under sections 189,190, or the notice under section 372, as he could have done (within 21 days of service of the notices) under sections 191 and 373 respectively of the 1985 Act.

At the time that the section 189 and 190 notices were served, an owner served with such notices was eligible, under the Local Government and Housing Act 1989, for grant aid from the local authority that had served the notice in respect of the works required under those notices. Mr Heffernan made an application for grant aid on 20 September 1996.

For one reason or another, no grant had been made to Mr Heffernan by the time that the statutory regime changed on 17 December 1996. That change had the effect of removing the entitlement to a grant in respect of repairs required under a section 190 notice and made the right to grant aid in respect of a section 189 notice discretionary for the council concerned. The policy of the London Borough of Hackney was only to give grants (which had been applied for under the old regime) after the new statutory regime started if the application was accompanied by builder’s estimates made prior to 17 December 1996. Mr Heffernan said that this caused him difficulties, both before and after 17 December 1996, because the tenant in the property refused to give Mr Heffernan or others access to enable a builder’s estimate to be provided for the purposes of the grant application. As a result, Mr Heffernan said, he was never able to put in a proper application for a grant.

In October 1996, when the 21 day period since the service of the notices had expired, Mr Heffernan gave the council notice that the 4 notices served on him were to be appealed (in the County Court) under sections 191 and 373 of the 1985 Act. But those attempted appeals were out of time and they came to nothing.

Mr Heffernan claims that he did certain remedial work on the property in the course of 1998/1999. But the council took the view that Mr Heffernan did not do the repairs as required under the notices. By sections 198A and 376 of the Housing Act 1985 it is a summary offence for a person having control of premises to which a repair notice relates to fail intentionally to comply with the notices served under sections 189 or 190, or section 373, respectively. Those provisions state that the obligation to carry out the works identified continues even if the period for doing so stated in the notice has expired.

In due course the council served summonses on Mr Heffernan for his alleged intentional failure to carry out the works identified in the notices that had been served on him by the council. However, on 9 February 2000 those prosecutions were all abandoned, on the basis, apparently, that all four notices were “invalid” because the council was unable to prove at the time that the section 189 and section 190 notices had been served on the mortgagee bank or that the bank had been notified of the section 373 notice.

The present proceedings by Mr Heffernan against the council were started when he issued a claim form on 30 August 2002. It had Particulars of Claim appended to it. Amended Particulars of Claim were served on 21 May 2004 and at the foot of them is a “Statement of Truth” which is not signed by Mr Heffernan but by a solicitor in Russell & Co, solicitors acting for Mr Heffernan.

Paragraphs 1 and 2 of the Amended Particulars of Claim record the fact that Mr Heffernan owned the property and that the notices under the 1985 Act were served in September 1996. Paragraph 3 asserts that, by abandoning the proceedings in the Magistrates’ Court in February 2000, the council acknowledged that the notices were invalid or defective.

Paragraph 4 of the Amended Particulars of Claim alleges negligence and breach of statutory duty by the council. It must be quoted in full:

“4.

By reason of the matters set out in paragraphs 2 and 3 above and further because the Defendant took steps in the period between 1996 and 2000 to compel the Claimant to do works on the property in purported compliance with the defective notices, the Defendant acted negligently and/or in breach of its duties under the Housing Act 1985”

Paragraph 5 alleges that as a result of the wrongful acts of the council, Mr Heffernan suffered loss and damage. This is the way that Mr Heffernan put his claim:

“5.

As a result of the wrongful acts of the Defendant the Claimant has suffered loss and damage, the heads of which are particularised hereinafter:-

(a)

the cost of works undertaken unnecessarily by the Claimant in purported compliance with the invalid/defective notices; approximately £50,000 but see below;

(b)

the cost of remedying damage caused by the Defendant’s workmen in (a) forcibly entering the premises, and (b) interfering with the roof of the premises before the Defendant was restrained by an injunction granted by Scott Baker J on 12^th October 1998; approximately £4,000 but see below;

(c)

the loss of rental income in respect of the ground floor flat for the period between September 1996 and February 2004 which was caused by the registration of the invalid-defective notices against the property, making it impossible to rent out; approximately £52,500 but see below.

The Claimant will further particularise the losses set out above and the bases of calculation of the same in the report of Brian Johnston, surveyor, to be served hereinafter. ”

Mr Heffernan made an alternative claim, based on allegations that the council, wrongfully and in breach of its statutory duty, failed to deal properly with the grant application. That claim was abandoned at the trial and no more need be said about it.

The re-amended defence of the council was served on 16 June 2004. The statement of truth is signed by Ms Jane Bird, on behalf of the council. In paragraph 8 of the pleading it states that the council had served notices on the mortgagees, Allied Irish Bank, but that the council could not locate the notices at the time of the Magistrates’ Court hearing. Paragraph 9 states that, subsequent to the proceedings in the Magistrates’ Court, Mr Heffernan disclosed to the council a letter from Allied Irish Bank confirming that the notices were in fact served on the mortgagee. Paragraph 10 of the pleading continues:

“In the circumstances had the Claimant informed the Defendant of the same at the Magistrates’ Court, rather than putting the Defendant to proof of the same, the prosecution would have proceeded under the said Acts. In the circumstances it is denied that the appropriate notices were invalid or ineffective as alleged”.

That pleaded issue was not expressly dealt with by the judge in his judgment. He proceeded on the basis that the notices had not been served on the bank: judgment page 3A. If the position was as pleaded by the council, I, for my part, would regard it as a matter of concern that Mr Heffernan took the stance that he did at the Magistrates’ Court, particularly because at that stage he was shortly to become a Solicitor of the Supreme Court.

In paragraph 11 of the re-amended Defence, the allegation of negligence is denied. Paragraphs 12 and 13 deal with the issue of duty of care. They state:

“12.

The Defendant has a duty to serve notices under section 189 and a discretionary power to serve notices under section 190 of the 1985 Act on the Claimant. No action can lie against the Defendant for doing that which the legislature has authorised, if it was undertaken without negligence.

13.

It is denied that the statutory duty and/or discretionary power to serve the notices on the Claimant were exercised carelessly or unreasonably, and the Claimant is put to strict proof of the same.”

Paragraph 14 alleges that the claimant had not given any particulars of negligence and put him to proof, asserting that the fact of offering no evidence in the Magistrates’ Court did not, in itself, establish a claim in negligence.

Paragraph 15 of the amended defence states, baldly: “It is admitted that the Defendant owes the Claimant a duty of care”. No elaboration was given.The assertion of damage made in paragraph 5 of the amended Particulars of Claim is denied in paragraph 17.

Prior to the hearing of the claim in the Mayor’s Court on 11 April 2005, witness statements were exchanged. The witness statement of Mr Heffernan is in the appeal bundle. It does not deal at all with the quantum of damages claimed. No invoices are exhibited to it, either for the repairs to the house or to the roof. There is nothing exhibited which supports the loss of rent claim.

However, Mr Heffernan did serve an expert’s report, that of Mr Brian Johnston, a chartered surveyor, to which the amended Particulars of Claim had referred. Mr Johnston had been involved in the application to the council for a grant by Mr Heffernan. In paragraph 11 of his report, Mr Johnston states that he was aware of the various notices requiring Mr Heffernan to put the premises into full repair. In paragraph 13, he states that subsequent to a county court hearing in October 1998 he noticed that the rear roof of the premises had been “tampered with” and that several slates were displaced or missing. He said: “it is unclear to me how this occurred, although Hackney’s own contractors had access to the premises at this time”. His report continues: “The damage is thought to be in the cost range of £3,500, as although the area of disruption was probably only 1 – 2 sq m. the difficulty of access and the necessity of scaffolding escalates this cost significantly”.

In paragraphs 14 – 16 he dealt with the loss of rent claim. They state:

“14.

The Basement Flat could not be let whilst these Notices remained attached, as at the time this would be apparently letting property deemed “Unfit” and the consequences for the Landlord would undoubtedly have been of a criminal nature.

15.

My estimate of the loss of potential rent whilst the Notices remained on the premises between September 1996 and February 2004 is as follows:

16.

If one takes an average of £175 per week over this period of 6.5 years gives a total figure of £59,150.”

He dealt with the cost of the repair work undertaken by Mr Heffernan in paragraphs 17 and 18. They state:

“17.

The costs of works undertaken by Mr Heffernan from my inspection of the premises and subsequent photo evidence supplied, I value to be around £51,500.

18.

If grant assistance had been supplied on a “materials only basis” I estimate this to be in the region of £10,000.”

He said that he had used 1997/8 prices.

It appears that no expert evidence was served by the council.

At the trial before HHJ Simpson on 11 April 2005, Mr Heffernan gave evidence. I have seen and read the transcript of it. At no stage in his evidence in chief does Mr Heffernan deal with the issue of what work was done to the house or who did it or how it was paid. He did not produce any invoices to substantiate the amount he claimed. In cross examination Mr Heffernan admitted that he had no evidence of the works that had been done: page 42E. However, he claimed that he had spent over £30,000 in cash: transcript page 28B. In the cross-examination of one of the council’s witnesses, Ms Elizabeth Watson, she was shown a letter that the council had sent to Mr Heffernan in respect of his claim for a grant in which the had offered a total of £19,255 to do certain works. She agreed that the letter had been sent: transcript 59C. However, her evidence was also that Mr Heffernan did not provide satisfactory proof that an authorised builder was doing the work; the view of the council was that he was doing most, if not all, of it himself: transcript 60A.

Mr Johnston was called to give evidence on behalf of Mr Heffernan. He was cross-examined on his report. He admitted that he had not provided a schedule to his report in which he set out how his estimate of the cost of the works done by Mr Heffernan came to £51,000. He admitted that he had not discussed the figure with Mr Heffernan: transcript 47C-G. Effectively he accepted that there were no receipts because he understood Mr Heffernan had paid cash for work done or had relied on favours from builders. He accepted that he had no documents in court to support the figure of £51,000: transcript 52D.

With regard to the basement flat, for which loss of rent was claimed, Mr Heffernan’s evidence was that the rent was £150 a week in 1994, which was paid through housing benefit: transcript 32H to 33B. The tenant was re-housed by the council in 1997 at the tenant’s request and he left the flat voluntarily: transcript 34D. Mr Heffernan’s evidence was that he was unable to re-let the property because of the notices that had been served by the council that it was an unfit property. His evidence was that he had finished the work on the basement flat in the third quarter of 1998, but he did not re-let it because the council continued to maintain notices on the property that it was unfit: transcript 36A-C. He said that the rental value of the property was “much more than £175” a week: transcript 36H.

Mr Johnston was not cross-examined on the issue of loss of rent.

On the alleged damage to the roof and the cost of repairing it, Mr Heffernan gave evidence that he had been told by the tenant of the upper flat that council workers had been round the property and on the roof. His evidence was that before that there had been no damage to the roof. He said that he did the repairs himself, for which he claimed £3,500: transcript 17E - 18B.

Mr Johnston was not asked any questions about the cost of the roof repairs.

After the council had closed its case, there was a discussion between counsel and the judge. He expressed the view that the claimant’s evidence on loss and damage was unsatisfactory: transcript page 86D-F. The judge invited Mr Broatch, who appeared for Mr Heffernan at the trial, to address him on the issues of damages, assuming liability issues in favour of the claimant: transcript page 88A. Mr Broatch then addressed the judge on damages issues. Before us, Mr Broatch pointed out that in his closing submissions, he had trimmed the claim for the cost of the repairs. He asked the judge to find that Mr Heffernan had spent £30,000 on the repairs. Alternatively, he asked the judge to find that “works to the value of £19,000 were done, albeit that they’re out of receipts”: transcript 89A-D. (The transcript should probably read: “..albeit that they are without receipts”).

At the end of those submissions, the judge said to him: “well, I needn’t trouble you as to the other matters on the liability”. The judge then gave an ex tempore judgment in which he dismissed the claims for the three heads of damages sought.

The judge set out the background to the case and recorded that, at the time of the Magistrates’ Court proceedings, the council had accepted that their notices were not valid because they had not been served on Allied Irish Bank: see judgment page 2A-B. The judge then said:

“Mr Heffernan brings this case on the basis of negligence that the authority had a duty of care to him, they breached that duty by serving invalid notices, and this, in effect, put a blight upon the property because he was unable to re-let until the prosecution was lifted and the consequential local land charge entries were removed.

On the evidence as it has proceeded this morning, I am satisfied that I can approach the matter on the basis that that is correct, that they had a duty of care to him, they breached that duty, that there is no blanket immunity available to them, and on that footing I will proceed to consider what damages, if any, Mr Heffernan can claim. As I have indicated, I assume the duty is in his favour, but I do not decide whether Mr Heffernan is correct in law or not. And so what are the damages which he now claims?”

The judge then dismissed each of the three heads of claim for damages. As for the claim for the cost of doing repairs to the property, the judge concluded that he had “…no idea how [the claim for] £51,000 is justified and how it is made up”: transcript page 4F-G. The judge noted that Mr Broatch had “resiled” from that figure in his closing submissions, but he thought that there was “confusion” about this part of the case: transcript 5A. He went on to hold that the evidence of Mr Johnston on this claim was also unsatisfactory, so that Mr Heffernan’s first head of claim was rejected: transcript page 5C.

The judge also held that Mr Heffernan had failed to prove that he had suffered any loss of rental income transcript page 5G. He did so on two bases. First, that Mr Johnston could not give evidence about the rent to be charged in Hackney, because he practised in Birmingham, so had no experience of local conditions. Secondly, because “if the defendant borough had realised their mistake in not alerting the bank to these notices, they could have served fresh notices straight away, a few days later and there would then have been no loss suffered by the claimant”: transcript 5G-6A. That conclusion must have been made on the premise that the notices were well- founded, in the sense that the property was in the condition that the notices said it was in. That issue was not pursued in the evidence before the judge. But I assume that Mr Heffernan must have accepted their truth (in the sense that he was bound by them), because otherwise he would have had no basis on which to continue to press for a mandatory grant aid under the Local Government and Housing Act 1989, after his attempts at appealing the notices had been rejected by the County Court.

The judge further held that there was no evidence of the cost of putting right any damage inflicted on the roof by the council workmen, if that had happened: transcript page 6B and page 7B. The judge therefore dismissed the action.

When Dyson LJ granted Mr Heffernan permission to appeal on 26 October 2006, he considered only the question of whether it was arguable that the judge had been wrong to dismiss the claim on the damages issues. He did not deal with any liability issues, as he expressly noted at paragraph 29 of his judgment granting permission to appeal. Dyson LJ commented, at the end of his judgment, that this was a case that was “crying out for settlement”. Apparently it is because the parties have, unsuccessfully, attempted to negotiate settlement by ADR that the hearing of the appeal has been so long delayed.

The Respondent’s Notice states that the council wished to cross-appeal the judge’s order on three grounds: first, because the judge was wrong to assume that the council was liable in negligence or in breach of statutory duty. Secondly, because he was wrong to do so without deciding issues of fact or law; and thirdly, because the judge was wrong to conclude that the failure to serve the notices on the mortgagee bank had caused Mr Heffernan financial loss.

Mr Broatch confined his opening submissions to the questions raised on the appeal. On the cost of repairs, he submitted that the judge should have accepted the evidence of Mr Heffernan that he had spent £30,000 on the repairs. Alternatively, the judge should have accepted the figure of £19,255 as the cost of the repairs which were, in his submission, undoubtedly done. There was, he submitted, enough material so that the judge could award some damages under that head.

As for the loss of rental, Mr Broatch submitted that there was evidence that the rental value of the basement flat was £150 a week. The judge was, in any event, wrong to dismiss Mr Johnston’s evidence just because he was based in Birmingham. The judge failed to take into account the fact that, even when remedial work had been done, the council did not remove the notice on the local land charges register. So the judge’s “no loss” point was wrong.

Mr Broatch submitted that the judge was wrong to conclude that there was insufficient evidence of the cost of repairing the roof. Once again, there was some evidence on which he should have reached a conclusion that damage had been done by council workmen and that it had cost something to be repaired.

When Mr Butler sought permission to put in the Respondent’s Notice of cross-appeal, that was granted. He submitted that the first two heads of damage were in a different class to the third. As to the first two heads, they were for economic loss. Mr Butler submitted that the facts of this case gave rise to no right of action for economic loss either on the basis of a common law duty of care by the council or on the basis of a breach of statutory duty. Therefore, if the judge had decided the liability issue as he should have done, Mr Heffernan would have lost. He relied in particular on the recent House of Lords decision of Trent Strategic Health Authority v Jain [2009] UKHL 4. He accepted that the roof damage claim was in a different category. However, in relation to that, the judge was entitled to find that Mr Heffernan had not proved his case.

Mr Broatch’s first submission on the cross-appeal, was that it would be most unjust for this court to decide that issue in the absence of any findings and a ruling by the judge, particularly given the judge’s decision not to call on either counsel to argue the issues of liability and to proceed on the basis that Mr Heffernan had established his case on liability. Secondly, he submitted that council employees did owe a duty of care in respect of the procedure for serving notices under the 1985 Act, both as respects the owner or manager of the property concerned and also any person interested in the property, such as a mortgagee. In support of his case that a duty of care was owed to Mr Heffernan in respect of potential economic loss, he relied on the decision of this court in Welton v North Cornwall District Council [1996] 1 WLR 570.

Mr Broatch’s overall submission was that the case was in such an unsatisfactory state that this court should remit the whole matter to be reheard in the County Court on both liability and damages issues.

It is clear, in my opinion, that the first two heads of damage claimed by Mr Heffernan fall into an entirely different category from the third, ie. the cost of repairs to the roof. The first two heads (cost of repairs said to be done “unnecessarily” and loss or rental) are claims for economic loss. They are said to arise out of breaches of a duty of care owed by the council to Mr Heffernan as the owner of the property in respect of the Notices issued by the council under the 1985 Act. In my view, serious issues on both the facts and the law are raised in respect of those claims. In retrospect, although I can understand the judge’s decision to take a short-cut and deal only with issues of quantum, I think it was unfortunate that he did not deal with the issues of both liability and causation in respect of all three heads of damage.

This court therefore had no relevant findings of fact or rulings of law by the judge on those issues. I, for my part, would be very reluctant to deal with them, particularly as we did not have extensive argument from both sides on all the issues that were raised. Therefore, it seems to me, I have to ask: was the judge entitled to dismiss the damages claims? If he was, the appeal can be dismissed. But if he was not, then this case will inevitably have to be remitted to the County Court to determine the facts and the law on liability and causation.

Was the judge entitled to reject all the damages claims? In my view he was and I can explain my reasons for so thinking quite shortly.

First, in relation to the cost of repairs claim, the judge rejected the evidence of Mr Heffernan. In my view, on the evidence, the judge was entitled to conclude that he was not satisfied that Mr Heffernan had proved that he had spent £51,000, as he had originally claimed. The judge was also entitled not to accept the unsupported evidence of Mr Heffernan (which was not corroborated in any way) that he had spent £30,000 on the repairs. As to the fall-back claim for £19,255, which was the sum that the council had been prepared to grant Mr Heffernan on proof of the work being done, there was also no evidence before the judge that this is what any work done (as to which there was precious little evidence anyway), had actually cost.

In Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd [1999] 2 Lloyd’s Rep 423, Stuart-Smith LJ (giving the judgment of the court) re-emphasised the basic rule that it is for a claimant to plead the damage claimed and the method by which he arrives at the claim. He should also plead an alternative approach if he has one: see para 50 of the judgment. The learned Lord Justice pointed out that it frequently happened that a claimant exaggerated his case. The judge may be able to “do his best” on the material available to the judge. However, the Lord Justice continued, a claimant “.. cannot complain if, through opening his mouth too wide, he fails to prosecute a more modest claim and the judge does not deal with the matter as sympathetically as he might otherwise have done”: see para 53 of the judgment. Those comments apply to this case. Mr Heffernan’s pleaded case on cost of repairs was for £51,000. The lesser sums were raised only in evidence or in submissions at the trial. The judge was singularly unimpressed by the evidence of Mr Heffernan on what, if any, sums he had paid for so-called repair works. Mr Heffernan can make no complaint if, as a consequence, the judge remained unsympathetic to any more modest claim. The judge was entitled to conclude that none had been proved.

The claim for loss of rent was in the same position. As pleaded, it was claimed, baldly, that loss of rental income was caused by the registration of the invalid/defective notices against the property for the period between September 1996 and February 2004. The loss of rent over that extended period was said to be “approximately £52,000”. At the trial the period for loss of rent was reduced to the period from 1 July 1997 to 9 February 2000. There was no evidence of comparables. There is no answer to the point that Mr Heffernan had continued to claim grant aid under the 1989 Act, which could only have been on the premise that the property was in fact in the condition set out in the section 189 and section 190 Notices. (That must have been the point behind the judge’s remark, at 5G to 6A of the judgment, had the council realised its mistake in not alerting the bank to the notices, it could have served fresh notices straight away, “and then there would have been no loss suffered by the Claimant”). Therefore, as a matter of fact, the lower flat could not have been rented out until those works were completed. In my view it is implicit in the judge’s remark that I have just quoted that Mr Heffernan did not satisfy the judge as to when that work had been done. The judge was therefore entitled to reject the loss of rent claim, either on the basis that Mr Heffernan had not demonstrated a causative link between the alleged negligence and his alleged loss; or that he had not proved the loss of rent claimed.

The third head of damages claimed was of a different character. Effectively, Mr Heffernan’s claim was that the council’s workmen had trespassed on his roof (because they were there without his consent) and that they had done physical damage to his property whilst doing so. He asserted that the cost of repairing that damage was £3,500. There was no direct evidence that council workers had been on the roof, only the hearsay evidence of the Rent Act tenant, who told Mr Heffernan that council workers had been there. The only evidence that they had caused the damage was Mr Heffernan’s statement that there had been no damage to the roof before the council workers went up there. He produced to the judge some photographs of damaged slates, which we have also seen.

I think that I have to proceed on the basis that the judge assumed that the council workers did trespass on the roof and that they did cause damage to the slates in doing so. But he found that Mr Heffernan had not proved that it cost him £3,500 to repair. The judge was entitled to do so in the absence of any proof of the cost of repairs other than the evidence of Mr Heffernan himself, which the judge clearly rejected. The statement at paragraph 13 of Mr Johnston’s report that “…the damage is thought to be in the cost range of £3,500…”, is not evidence of anything. He is simply reporting what he has been told the “cost range” is and he then seeks to justify it. But that statement does not add any force to the evidence of Mr Heffernan, which, as I say, the judge clearly rejected.

The judge might have awarded Mr Heffernan nominal damages for the trespass to the roof, but, not surprisingly, that was not argued as an alternative.

For these reasons, I am satisfied that the judge was entitled to reject the damages claims. The appeal must be dismissed. In these circumstances, there is no need to deal with the issues raised on the council’s cross-appeal.

I agree.

agree that this appeal fails on the narrow ground that the judge was entitled – indeed arguably right - to find none of the heads of damage proved. It is not permissible to come to court with bald assertions of the kind with which the Judge Simpson was presented, unsupported by a single document showing payment or loss, and to leave him, as Bowen LJ once put it, like a blind man searching for a black hat in a dark room. Hackney might well have had a good appeal if, faced with the absence of worthwhile evidence, the judge had plucked figures out of the air as Mr Broatch was in effect inviting him to do.

But beyond this I would endorse the doubts expressed by Lord Justice Aikens about the assumed causes of action. I can understand why, presented with an undefined admission of potential liability in negligence, the judge thought it best to look first at whether there was any proven damage. But I am bound to say that, as at present advised, the two claims predicated on the supposed invalidity of the local authority’s notices to repair seem to me to have been demurrable and open to an application to strike them out.

I know of no principle of public law which renders an otherwise valid notice void if a copy has not been served as required by law on a third party. Nor do I know of any authority which gives a recipient of such a notice a cause of action if he spends money in implementing it or suffers loss by failing to implement it. I do not therefore understand Hackney’s apparent admission that it could be liable if it carried out the notice procedure negligently; and it may well have been because the judge did not understand it either that he took the course he did. Although our decision has not in the event turned on it, our attention has been invited to the decision of the House of Lords in Trent Strategic Health Authority v Jain [2009] UKHL 4, which might have been thought conclusive on this issue irrespective of this court’s decision on the special facts of Welton v North Cornwall DC [1997] 1 WLR 570 on which Mr Broatch would have relied.