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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> London Borough of Lambeth v Loveridge [2013] EWCA Civ 494 (10 May 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/494.html Cite as: [2013] HLR 31, [2013] WLR 3390, [2013] WLR(D) 173, [2013] 1 WLR 3390, [2013] 21 EG 106, [2013] 3 All ER 261, [2013] EWCA Civ 494 |
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ON APPEAL FROM LAMBETH COUNTY COURT
His Honour Judge Blunsdon
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BRIGGS
and
SIR STANLEY BURNTON
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THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LAMBETH |
Appellants |
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- and - |
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HARRY LOVERIDGE |
Respondent |
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(instructed by Lambeth Legal Services) for the Appellants
Mr J Luba QC and Mr Paget (instructed by Fisher Meredith LLP) for the Respondent
Hearing dates: 23 April 2013
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Crown Copyright ©
Lord Justice Briggs :
Introduction
The Facts
Statutory damages for wrongful eviction
"27 Damages for unlawful eviction
(1)This section applies if, at any time after 9th June 1988, a landlord (in this section referred to as "the landlord in default") or any person acting on behalf of the landlord in default unlawfully deprives the residential occupier of any premises of his occupation of the whole or part of the premises.
(3)Subject to the following provisions of this section, where this section applies, the landlord in default shall, by virtue of this section, be liable to pay to the former residential occupier, in respect of his loss of the right to occupy the premises in question as his residence, damages assessed on the basis set out in section 28 below.
(4) Any liability arising by virtue of subsection (3) above—
(a) shall be in the nature of a liability in tort; and
(b) subject to subsection (5) below, shall be in addition to any liability arising apart from this section (whether in tort, contract or otherwise).
(5) Nothing in this section affects the right of a residential occupier to enforce any liability which arises apart from this section in respect of his loss of the right to occupy premises as his residence; but damages shall not be awarded both in respect of such a liability and in respect of a liability arising by virtue of this section on account of the same loss.
(6) No liability shall arise by virtue of subsection (3) above if—
(a) before the date on which proceedings to enforce the liability are finally disposed of, the former residential occupier is reinstated in the premises in question in such circumstances that he becomes again the residential occupier of them; or
(b) at the request of the former residential occupier, a court makes an order (whether in the nature of an injunction or otherwise) as a result of which he is reinstated as mentioned in paragraph (a) above;
and, for the purposes of paragraph (a) above, proceedings to enforce a liability are finally disposed of on the earliest date by which the proceedings (including any proceedings on or in consequence of an appeal) have been determined and any time for appealing or further appealing has expired, except that if any appeal is abandoned, the proceedings shall be taken to be disposed of on the date of the abandonment.
(7) If, in proceedings to enforce a liability arising by virtue of subsection (3) above, it appears to the court—
(a) that, prior to the event which gave rise to the liability, the conduct of the former residential occupier or any person living with him in the premises concerned was such that it is reasonable to mitigate the damages for which the landlord in default would otherwise be liable, or
(b) that, before the proceedings were begun, the landlord in default offered to reinstate the former residential occupier in the premises in question and either it was unreasonable of the former residential occupier to refuse that offer or, if he had obtained alternative accommodation before the offer was made, it would have been unreasonable of him to refuse that offer if he had not obtained that accommodation,
the court may reduce the amount of damages which would otherwise be payable to such amount as it thinks appropriate"
"28 The measure of damages
(1) The basis for the assessment of damages referred to in section 27(3) above is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between—
(a) the value of the interest of the landlord in default determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and
(b) the value of that interest determined on the assumption that the residential occupier has ceased to have that right.
(2) In relation to any premises, any reference in this section to the interest of the landlord in default is a reference to his interest in the building in which the premises in question are comprised (whether or not that building contains any other premises) together with its curtilage.
(3) For the purposes of the valuations referred to in subsection (1) above, it shall be assumed—
(a) that the landlord in default is selling his interest on the open market to a willing buyer;
(b) that neither the residential occupier nor any member of his family wishes to buy; and
(c) that it is unlawful to carry out any substantial development of any of the land in which the landlord's interest subsists or to demolish the whole or part of any building on that land.
"I do not understand that section to contemplate, as Mr Carnwath's argument contemplates, that the premises will be treated as virtually inalienable and having no value in consequence. Subsection (3) clearly contemplates that there shall be no increase in the damages because the effect of the tenant being dispossessed is that it enables some very valuable development to take place. But the whole concept of the landlord in default selling his interest on the open market to a willing buyer assumes that he can sell it on the open market to a willing buyer, and that involves the subsidiary proposition on the facts of this case that the willing buyer would take a lease from the Lambeth London Borough Council on a monthly basis subject to the Landlord and Tenant Act 1954 with a covenant against subletting or assignment in exactly the same way as Mr Cafane had done. In my judgment, there is nothing in that point."
"…have had a very considerable impact upon the damages. As at 18 June 1990, the respondent's tenure was in the highest degree precarious, wholly dependent in law upon his wife not serving a valid notice to quit as she was clearly anxious to do. Even giving the respondent the benefit of all possible doubts as to the true extent to which his continuing rights in the property reduced its open market value, and recognising not least that he could undoubtedly have put the local authority to some expense and delay in securing the wife's necessary further co-operation and obtaining and executing the necessary court order for possession, I would have assessed statutory damages here at no more than £2,000."
"The clear answer to this argument, I am satisfied, lies in Mr Arden's submission that what is being valued is the interest of the landlord in default, not the abstract interest of a notional willing buyer. Although the concept of a willing buyer helps to fix the respective valuations, one postulates the landlord's continuing ownership in fact."
In my judgment all that Simon Brown LJ was saying was the sale did not have to be regarded as taking place instantaneously, before the landlord had time to effect a lawful eviction of the husband with the wife's willing assistance. He was not saying, as Mr Luba QC submitted and the judge appears to have thought, that it had to be assumed that there would be no sale. That would be contrary to the clear language of s.28(3)(a).
The trial judge's decision on the construction issue
"I refer back to s.28(1)(a). In this case the interest of the landlord in default before eviction was subject to a secure tenancy. The difference in value has to be determined as at the time immediately before eviction. I then read s.28(3) which defines by three assumptions the basis of the 2 valuations based on an assumed sale. However the sale is a fiction and to convert the secure tenancy to an assured tenancy for valuation purposes is to ignore the nature of the right to occupy the premises immediately before the eviction took place. Reading the section as a whole I conclude that the valuation under s.28(1)(a) requires no gloss or further assumptions. It requires a valuation of the Defendant's interest before eviction by way of a hypothetical sale subject to the continuation of a secure tenancy notwithstanding that on sale that tenancy would become assured. This gives a purposeful meaning to the words "continues to have" and "same right" in s.28(1)(a) and "that right" in the following subsection. It determines the value of the interest of the landlord in default, "not the abstract interest of a notional willing buyer". It also addresses the aim of the statutory provision as identified by Dillon LJ in Jones v Miah [1992] 24 HLR 578 "…of entitling the person injured to recover by way of damages from the landlord in default the profit which the latter has made from his wrong" page 587). Further it "postulates the landlord's continuing ownership in fact" (Osei-Bonsu idem)."
Analysis
Lord Justice Stanley Burnton
Lady Justice Arden