Grand v Gill

This appeal by Tanya Grand, the claimant, is against an order made by His Honour Judge Karsten QC on 7 May 2009 in the Central London County Court. The defendant, respondent to the appeal, is Param Gill, Ms Grand’s landlord. Before the judge, Ms Grand represented herself, and Mr Param was represented by counsel. Before this court, the position was the reverse. Ms Grand had the benefit of pro bono representation by John de Waal of counsel, for whose assistance I express my gratitude; and Mr Gill represented himself.

Ms Grand’s claim against Mr Gill was for damages for his breaches of covenant as her landlord. The judge awarded her damages of £5,600. By her original grounds of appeal Ms Grand complained about the trial and its outcome in a number of respects but in the event she obtained permission from Patten LJ to appeal only on grounds 2 and 9. The terms of Patten LJ’s permission show that he was in fact referring to ground 10, not ground 9.

Ground 2 complains of the judge’s failure (i) to deal with Ms Grand’s claim for special damages (pleaded as being for £392, but strictly for at most £343, £49 of the pleaded claim being in respect of costs for printing documents for the proceedings), and (ii) to award her any interest on the damages he did award. I need say no more about the special damages point since Mr de Waal, on instructions, abandoned it at the hearing. He did, however, pursue the interest point. Ground 10 is somewhat discursive, but the only element advanced to us, in line with Patten LJ’s permission, was based on what was said to be the judge’s mistaken treatment of Ms Grand’s claim for general damages, with the consequence that he is said to have under-compensated her.

Ms Grand was formerly Mr Gill’s tenant of the second floor (top) flat in a three-storey building at 9B Marlborough Parade, Uxbridge Road, Hillingdon, Middlesex. The ground floor consists of commercial premises and there is another flat on the first floor. She originally had a 12-month assured shorthold tenancy under a tenancy agreement dated 21 November 2004; and following the expiration of the original term, the tenancy continued as an assured periodic tenancy. Ms Grand occupied the flat with her daughter Alison, who was 17 at the time of the trial in May 2009. The flat comprises two bedrooms and a living room, kitchen, bathroom and lavatory. Mr Gill has a long leasehold interest in the flat but no interest in the remainder of the building. Ms Grand made claims against him under several heads. They included claims for harassment under the Protection from Harassment Act 1997 and for personal injury, which both failed and with which this appeal is not concerned. She also advanced a claim for breach of Mr Gill’s covenant for quiet enjoyment, which succeeded and for which she recovered damages of £350 that formed part of the total damages awarded of £5,600. There is no need to refer further to that head of claim. I turn to the issues before the judge with which the appeal is concerned.

Damp and Mould

Ms Grand’s main complaint was of damp and mould throughout the flat. The damp was apparent shortly after she moved in and got worse over time. It was evident on the walls of the living accommodation and became so bad that the smaller bedroom (Alison’s) became uninhabitable and Alison had to move into the living room. Curative works to the damp problem were only done in April 2009. The judge found the complaint about the damp to be established.

Water ingress

Another complaint – found by the judge to be associated with the damp and mould and causally connected with it -- was about the undisputed ingress of water into the flat through the ceiling, which was from two sources. The first was a leaking roof above the ceiling. The second was the guttering at the level of the roof. The roof was not, however, part of the premises let to Ms Grand and the judge found that the responsibility for the repair of the roof and guttering lay with the head landlord.

An inadequate boiler

The complaint here was that the gas-fired boiler was old, extensively corroded, broke down frequently and worked inefficiently. The judge accepted Ms Grand’s evidence that during a total of 207 days (give or take a day or so) between 22 November 2004 and 24 November 2007 the boiler did not function at all. It was replaced in November 2007, following which there was consistent proper heating in the flat. During the periods prior to that when the old boiler was working, it failed to produce sufficient heat to provide a warm or comfortable environment and to provide hot enough water for a hot shower. The ambient temperature that it achieved was just 15 degrees centigrade, which the judge found was inadequate. Ms Grand’s evidence in relation to the boiler was not challenged.

The judge found, in paragraph 21, that Ms Grand had given sufficient notice to Mr Gill of the various defects and matters complained of to activate such obligations to which he was subject to effect necessary repairs. For the reasons he gave, he rejected, in paragraph 25, an assertion that any damages to which she was in principle entitled ought to be reduced on the ground that she had, so it was asserted, failed to afford access without good reason to workmen whom Mr Gill sent to the flat.

The judge dealt in paragraph 26 and following with the claim in respect of the damp and mould. He held that the experts’ reports showed that the primary cause of it was the design and structure of the flat, essentially its lack of ventilation. The penetrating damp had been aggravated by the ingress of water from the roof and the guttering but those areas were not within Mr Gill’s demise. He held that to the extent that damp or mould had been caused by condensation because of a lack of ventilation, a landlord’s repairing obligation under section 11 of the Landlord and Tenant Act 1985 did not arise until there was some condition calling for repair. He relied on Quick v. Taff Ely Borough Council [1986] QB 809 for the proposition that there was no actionable repair where severe condensation was caused by the design of the property.

The judge explained as follows his damages awards in respect of (i) the damp and mould, (ii) Mr Gill’s failure to resolve the boiler problem over a period of three years from November 2004 to November 2007, resulting in a lack of proper heating to the flat during this time, and (iii) his breach of the covenant for quiet enjoyment:

The main ground of appeal is that it is said by Mr de Waal that the judge was wrong to apply the 90% discount to the damage caused by the damp. The judge’s reasoning was that only 10% of the cause of the damp and mould could be attributed to fault on the part of Mr Gill, mainly because of the inadequacy of the boiler. Mr de Waal submitted that in that respect the judge was wrong and he asked us to increase the damages awarded under this head from £600 to £5,000. The judge’s error, he submitted, was in his application of the decision in Quick v. Taff Ely Borough Council [1986] QB 809.

Mr Gill was subject to repairing obligations under both the tenancy agreement and section 11 of the Landlord and Tenant Act 1985. By clause 2.3 of the tenancy agreement, Mr Gill agreed, so far as material, to keep in repair:

By section 11(1)(a) of the 1985 Act, Mr Gill was subject to an obligation in the like terms as clause 2.3.1, with section 11(1A) providing that in a case, as here, in which the lease is of a dwelling-house forming part only of a building, the covenant implied by section 11(1) shall have effect as if:

It is accepted that Mr Gill was not responsible for the repair of the defective roof and guttering, which caused some of the water ingress. The judge, however, made the findings that he did as to the consequential damage to the internal plasterwork in paragraphs 26 and 29 of his judgment; and it is said that Mr Gill was liable to repair that plasterwork.

Mr de Waal referred us to the evidence before the judge as to such damage. It was contained in the two expert reports of Ian Lovatt, a chartered surveyor. The first report followed Mr Lovatt’s inspection of the flat in March 2006. Item 1.02 in the appended Scott Schedule, relating to the living room, referred to damaged plasterwork, caused by penetrating dampness, in the upper part of the front wall extending downwards to the extent of about 600mm. There was also a damaged area to the left side of the main window. The repair required was stated as follows:

Mr Lovatt’s second report followed an inspection of the flat he made in February 2008. Item 1.01 of the Scott Schedule referred again to the living room and noted damage to the ceiling in the nature of a ‘small area of fallen lath plasterwork’, for which the required repair work was ‘Cut back defective plaster, tack board and skim.’ Item 5.01 referred to kitchen ceiling, said to be dry at the time of the inspection but requiring preparation and re-decoration. This item made no reference to damaged plasterwork.

The judge found, in paragraph 28, that the inadequacy of the heating system, caused by the defective boiler for which Mr Gill was responsible, contributed to the damp problems from which the flat suffered. In paragraph 33 the judge assessed that, if Mr Gill were liable for all the damage, an award of £6,000 would be appropriate. As, however, he was only 10% responsible for the damp damage, an award of £600 was appropriate. Where, Mr de Waal submitted, the judge went wrong was to overlook that Mr Gill was not just in breach of his obligations in relation to the heating problems but also in relation to the omission to repair the damaged plaster. The judge ought not, therefore, to have discounted his total damages figure of £6,000 by as much as 90% because that ignored that Mr Gill was 100% responsible for the damage flowing from the disrepair of the plasterwork. Quick’s case shows, as the judge recognised, that liability under repairing covenants such as Mr Gill’s for conditions caused by condensation resulting from a design defect does not arise unless they result in physical damage covered by the landlord’s covenant, when the repairing obligation will apply. In this case, however, the judge found (or ought to have found) that there was physical damage, resulting in disrepair, to what is said to have been part of the structure of the property, namely the plasterwork in the living room (front wall and ceiling) and in the kitchen (ceiling).

In my judgment, assuming that the plasterwork damage identified by Mr Lovatt is correctly characterised as damage to the ‘structure’ of the flat, it was damage for which Mr Gill was responsible under his repairing obligations under both the tenancy agreement and the provisions in section 11(1) of the Landlord and Tenant Act 1985 (see Quick v. Taff Ely Borough Council [1986] QB 809, per Dillon LJ, at 818E). A key question, however, which Mr de Waal very properly raised with us, is whether such plasterwork did form part of the ‘structure’ of the flat. Only if it did was Mr Gill liable to repair it.

The judge may have assumed in paragraph 26 that the plaster formed part of the structure of the flat but I find it difficult to read his last sentence of that paragraph as making a finding to that effect. In Quick’s casethe landlord council concededfor the purposes of the appeal that the plaster in the house was part of its structure (see [1986] QB 809, at 820B and 822G) and so that decision provides no authority on the point. In Staves & Staves v. Leeds City Council (1991) 23 HLR 107, another decision of this court, a like concession was also made by the landlord council (see per Ewbank J, at 110, and per Lloyd LJ, at 112). Given the concession, that case also cannot be regarded as authority on the point. In Niazi Services Ltd v. van der Loo [2004] 1 WLR 1254 an issue came before this court as to whether plasterwork forms part of ‘the structure’ of a dwelling-house within the meaning of section 11 of the 1985 Act. Having recognised it as a difficult question, the court explained in paragraph [7] why it did not propose to answer it.

The point was, however, the subject of decision by Mr Recorder Thayne Forbes QC in Irvine v. Moran (1992) 24 HLR 1; [1991] 1 EGLR 261. The lease there in question was one to which section 32 of the Housing Act 1961 applied, but section 11(1) of the 1985 Act is, so far as material, in identical terms. Before the judge were preliminary issues as to which of several items – including ‘internal wall plaster’ – were part of ‘the structure and exterior of the dwellinghouse’ and so within the landlord’s repairing covenants imposed by section 32. Dealing first with the meaning of the word ‘structure … of the dwellinghouse’ in that section, Mr Recorder Thayne Forbes said this:

Having so directed himself as to the ‘structure … of the dwellinghouse’, Mr Recorder Thayne Forbes considered which of the items in issue fell within it. Dealing with ‘internal wall plaster’, he said this:

In this court’s decision in Marlborough Park Services Ltd v. Rowe [2006] EWCA Civ 436; [2006] HLR 30, Neuberger LJ (as he then was), with whose judgment Sedley and Tuckey L.JJ agreed, cited from the first passage that I have quoted from Irvine v. Moran (relating to the phrase ‘the structure … of the dwellinghouse’), saying of it:

Mr de Waal, for Ms Grand, submitted that the decision in Irvine v. Moran as to plaster on internal walls not forming part of the structure of a dwellinghouse was in principle wrong. He accepted that, applying Mr Recorder Thayne Forbes’s guidance as to the meaning of ‘the structure … of the dwellinghouse’, internal plasterwork does not give the house stability. But it does, he said, contribute to its appearance and shape. It is, he said, artificial to regard internal plasterwork, whether on walls or ceilings, as purely decorative. The relevant distinction is, he said, between decoration and fittings on the one hand and everything else making up the dwellinghouse on the other.

I have not found this question a straightforward one, the answering of which was not helped by the fact that there was no expert evidence as to the plasterwork in the flat or plasterwork generally, we have no findings about the matter by the judge and had no argument on it from Mr Gill. Despite these disadvantages, I consider that the court must, however, answer the question.

For myself, whilst I would accept and adopt Mr Recorder Thayne Forbes’s observations as to the meaning of ‘the structure … of the dwellinghouse’ as providing for present purposes, as Neuberger LJ put it, a good working definition, I am respectfully unconvinced by his holding that the plaster finish to an internal wall or ceiling is to be regarded as in the nature of a decorative finish rather than as forming part of the ‘structure’. In the days when lath and plaster ceiling and internal partition walls were more common than now, the plaster was, I should have thought, an essential part of the creation and shaping of the ceiling or partition wall, which serve to give a dwellinghouse its essential appearance and shape. I would also regard plasterwork generally, including that applied to external walls, as being ordinarily in the nature of a smooth constructional finish to walls and ceilings, to which the decoration can then be applied, rather than a decorative finish in itself. I would therefore hold that it is part of the ‘structure’. I would accordingly accept that the wall and ceiling plaster in Ms Grand’s flat formed part of the ‘structure’ of the flat for the repair of which Mr Gill was responsible.

It follows that I consider that the judge should also have found that the disrepair of the damaged plasterwork meant that Mr Gill was in that respect in breach of his repairing obligations and should have compensated Ms Grand appropriately. I admit to at least some uncertainty as to whether, in arriving at his ‘full liability’ figure of £6,000 in paragraph 33 the judge was including the plasterwork damage, but I infer that he was; and, consistently with that, Mr de Waal’s complaint was that he was wrong to discount the £6,000 figure by as much as 90%. I propose to proceed on that basis. He should, in my view, therefore have awarded Ms Grand (i) full compensation for the plasterwork damage, and (ii) discounted compensation for the remainder of the damage to which the inadequate heating contributed (there was no challenge to the principle of the latter approach that the judge adopted in paragraph 33).

Mr de Waal submitted that, because of the judge’s error in relation to the plasterwork, an appropriate figure to substitute for his £600 one was the figure of £5,000. I respectfully disagree. Whilst I agree that Mr Gill should be 100% liable for the plasterwork disrepair, I consider that to regard that element of his liability as representing a figure approaching £5,000 of the judge’s ‘full liability’ £6,000 figure as unrealistic. This court is not in as good a position as was the judge to make the required assessment but the sums involved are, in my view, of too modest a nature to justify a remission for a re-assessment by the judge. I consider, therefore, that we should make the assessment ourselves although I recognise that that will require the wielding of a fairly broad brush. I would assess the plaster damage as representing £750 of the judge’s £6,000; and so would assess the balance of the damage at £5,250. On that basis, the figure I would substitute for the judge’s £600 figure is £750 + (£5,250 x 10%), or £1,275. The result is that the overall damages award that the judge made ought, I consider, to be increased from £5,600 to £6,275 and paragraph 1 of his order of 7 May 2009 adjusted accordingly. I would so order.

For unexplained reasons the judge did not award any interest on the damages although I understood from Mr de Waal that it was applied for (it was claimed in the original and amended Particulars of Claim). I consider that an award of interest ought to have been made. Mr de Waal suggested a rate of 2%, with which I agree, and that it should run on the damages from the date of the issue of the claim on 6 November 2006, with which I do not agree. I disagree because the damages awarded include a material element of compensation in respect of a period subsequent to November 2006, when the boiler was still malfunctioning, and it cannot be just to require Mr Gill to pay interest from that date on sums that relate to damage suffered by Ms Grand subsequently. During the argument the court suggested that a fairer date to take would be 1 December 2007 – which followed the replacement of the boiler, after which the flat enjoyed proper heating -- with which Mr de Waal agreed. I would order Mr Gill to pay interest at 2% on the adjusted damages of £6,275 from that date to the date of the judge’s order (7 May 2009); and paragraph 1 of the judge’s order should be varied to include such an interest award. I consider that it also follows that the references to ‘damages’ in paragraphs 5 and 7 of the order should be varied to read ‘damages and interest’.

As I have said, Mr de Waal appeared pro bono but, were the appeal to succeed, he invited us at the hearing to make an award of costs against Mr Gill in favour of a prescribed charity as permitted by section 194 of the Legal Services Act 2007. He provided a breakdown of his time spent in preparation for the appeal, which totalled 12.5 hours and, at a standard hourly rate of £250, produced a total figure of £3,125. Save that the breakdown included (a) work done for the abandoned appeal in respect of special damages, and (b) a slight over-estimate for the length of the hearing of the appeal, I consider that it was a moderate and fair one. I would, however, adjust it to take account of both these matters and reduce it to £2,500. As required by section 194(3) of the 2007 Act, I consider that, had Mr de Waal’s representation of Ms Grand been provided on a fee-paying basis, it would have been appropriate to order a proportionate part of his fees to be paid by Mr Gill, a respondent who resisted the appeal unsuccessfully. I would therefore summarily assess at £2,500 the costs that the respondent, Mr Gill, must pay. I would direct that, within 14 days of the date of the court’s order, he must pay it to the prescribed charity, namely The Access to Justice Foundation (the payment to be sent to PO Box 64162, London WC1A 9AN).

I would make orders on this appeal accordingly. I would also ask Mr de Waal to draft an appropriate form of order giving effect to the court’s decision, having first provided a copy to Mr Gill for his comments.

I agree with Rimer LJ that the issue on this appeal (apart from the point about interest) turns on whether plaster on the ceiling and the walls of the flat is part of the structure of the flat for the repair of which Mr Gill as landlord is responsible under clause 2.3.1 of the tenancy agreement and section 11(1)(a) of the 1985 Act.

The only decision on the point is that of Mr Recorder Thayne Forbes Q.C. (as he then was) in Irvine v Moran, from which Rimer LJ has quoted the relevant passages. In Niazi Services Ltd v Van der Loo, to which he has also referred, the Court of Appeal described the point as being “not free from difficulties” and understandably refrained from deciding it, since it was unnecessary for the outcome of that case. The point does require thought, and we have less material than would be ideal on which to come to our conclusion, but we cannot avoid the point, as the Court of Appeal has been able to on previous occasions.

Like Rimer LJ, I would respectfully differ from Mr Recorder Thayne Forbes on this point, not as regards the first passage (quoted at paragraph [20] above) in which he sought to identify a principle on which to decide the point, but rather as regards his application of that principle to the particular case of plaster, in the passage set out at paragraph [21] above. As Rimer LJ says, in the case of the use of plaster in ways which are now perhaps historic rather than current (but of which examples are certainly still to be found) such as lath and plaster construction, the plaster is clearly part of the structure. The expert’s second report suggests (as quoted at paragraph [16] above) that this technique may have been used in parts of the premises relevant to this case.

I would not limit my reasoning, however, to cases where the wall or ceiling is of lath and plaster or similar construction. I agree that plaster as applied to even a solid wall or ceiling is not “in the nature of a decorative finish”, as Mr Recorder Thayne Forbes said, and that it is to be regarded as a part of the wall or ceiling upon or to which a decorative finish, of whatever kind, may be applied. Accordingly I would hold, as a general proposition, that plaster forming part of or applied to walls and ceilings is part of the structure of the relevant premises.

I therefore agree with Rimer LJ that, to the extent of the damage caused by the failure to repair the plasterwork, Mr Gill was liable for the whole of that loss, not for only a small percentage of it.

I also agree with his assessment, on the very limited materials that we have, of the appropriate figure for the damages which should have been awarded to the appellant, taking account of this factor.

Likewise, I agree with what he says about interest and about costs, for the reasons that he gives.

I agree with both judgments. The reasoning and conclusion of Mr Recorder Thayne Forbs in relation to wall plaster quoted at paragraph 21 of Rimer LJ’s judgment are not correct. Plaster forming part of or applied to walls and ceilings is part of the structure of the relevant premises.