Bilgili & Anor v Paddington Churches Housing Association & Anor

This is a renewed application for permission to appeal. Mr Lane, on behalf of the defendants below, the Paddington Churches and Housing Association and Pathmeads Housing Association, submits not only that HHJ Edward Bailey was mistaken in law in holding the defendants liable for breach of their admitted covenant to carry out repairs in a proper workmanlike manner, but that the case, since it is now at the stage of a second appeal, raises a point of law of general importance, meriting the attention of this court.

What happened is almost embarrassingly simple. The defendants, as good landlords should, took their covenant to keep the premises in repair seriously and gave instructions to builders to replace the old Crittall windows in the property of which the claimants were tenants with modern UPVC windows. By what was undoubtedly an oversight (though Mr Lane is still unable to tell me whether it was his client’s oversight, their surveyor’s oversight, or the builders falling down on their instructions) the Crittall window which was taken out, and which had a spinner vent in it which was essential for its functioning because the window was the single window to a kitchen, was replaced with a window that was fixed and had no means of opening and no form of ventilation inset into it. The consequence is said to have been (though this matter remains for trial) unpleasant and harmful condensation within the room, resulting in mould growth, damp and risk to health.

The district judge who first heard the case gave judgment in the landlord’s favour, taking the view that, as Mr Lane submits to me today, what was being asked of the defendants went beyond their covenant and required them to improve rather than repair. HHJ Bailey held that the district judge had erred in that regard:

“In my judgment, in removing the fan and essential fitting the landlords were in breach of their covenant to the tenant.”

Seeking to appeal this on the ground that, in effect, the district judge was right and the circuit judge wrong, Mr Lane first came up against the view of Etherton LJ dealing with the case on the papers. He wrote:

“This is a second appeal. It does not raise an important point of principle or practice, and there is no other compelling reason for the Court of Appeal to hear it. The judge’s decision turned on the particular fact that there was an extractor fan in the kitchen before the windows were replaced, and the extractor fan was removed and not replaced where the new windows were fitted. In any event, an appeal has no real prospect of success.”

Having heard Mr Lane today, I have to say that I agree with every syllable of this. Even if this were not a second appeal, I would say that it was hopeless. It is as plain as a pikestaff in my judgment that a kitchen window which is acknowledged to require ventilation and so has a spinner vent in it, has not been properly repaired if it is replaced with a sealed window that has neither a means of opening nor any form of ventilation. That seems to me to be an end of the matter on the facts.

As to whether the issue, even if it were arguable, raises a point of general principle, I have the gravest doubts. This is not something which in my experience is of wide importance; I have never, in many years first of all of acting in and then of adjudicating on landlord and tenant disputes, come across anything quite as bizarre as what happened in this case. One would have hoped that the two housing associations, which do good work and I am sure are honourable landlords, would have recognised that somewhere their repair system had slipped up and would do what they could to make up for it. Instead, they have pursued the matter all the way up to this court for reasons that I still, having heard Mr Lane I hope with care and courtesy, fail to understand.

This is not an appeal with any chance of success. It is certainly not an appeal that raises any important point of principle or practice. The application is therefore refused.