Mrs Shelley Bloom was a landlord. She desired to evict her tenant, Mr Andrew Henley. He, having lived in the property for over 20 years, did not want to go, even though he had complained about its condition to his landlord in the past. Possession proceedings were issued, which developed complications (no need to go into why). The case was eventually settled on the following basis:
- Mr Henley should give up possession of the flat on or before 1st June 2007,
- Mrs Bloom should pay Mr Henley’s solicitors £16,000 in specified instalments;
- This money was not to be paid to Mr Henley until he had vacated the flat;
- Mrs Bloom should pay Mr Henley’s costs in the sum of £4,000.
The order also said that it was
in full and final settlement of any claim that [Mr Henley] might have arising from work improvements or enhancements undertaken by him or on his behalf to the [flat]”; [and] that Mr Henley would give up possession of the flat pursuant to the agreement “in good tenantable repair and condition”.
My Henley duly left the flat on 1st May 2007, and Mrs Bloom, no doubt with sighs of relief, carried out ‘substantial’ redevelopment work to the property.
However unbeknown to her, Mr Henley had, before he left, commissioned a report on the extent of dampness and disrepair in the flat from Mr Sennett, an experienced Environmental Health Officer. On 28 November (a year and a half after he had vacated the property) he issued proceedings against Mrs Bloom claiming compensation from breach of her statutory repairing obligations.
Surely though this was abuse of process and could be struck out? There had already been one case about the property which had referred to its condition (Henley had after all agreed to give the property up in good tenantable repair and condition), and anyway it was now impossible, claimed Mrs Bloom, for her to counter the report as she had had the property renovated. It would therefore be impossible to have a fair trial.
The District Judge agreed with her. So did the Circuit Judge who said that Mrs Bloom “would be fighting the case with one hand behind her back” and that the unfairness “had been caused entirely” by Mr Henley. Henley was refused leave to appeal and it looked as if Mrs Bloom was safe. But then, after a further oral hearing, he was granted permission to appeal.
Most unfortunately for Mrs Bloom the Court of Appeal then found for Henley. Here, in essence, are their main reasons:
- At the time of the possession claim, Henley could not have brought his disrepair claim as he had not at that stage commissioned the report
- There is a general principle that every person with an arguable claim should be able to pursue it in court, which is enshrined in Article 6 of the European Convention
- The Appeal Judge considered that the two cases (ie the possession claim, and Henleys claim for compensation) were about different issues. The provision in the consent order which referred to the state of the flat was concerned with Henley’s obligation in relation to the state of the flat at the end of the tenancy, and had nothing to do with the extent of any failure to repair by Mrs Bloom during the currency of the tenancy, let alone the extent of any damage suffered by Mr Henley
- If the possession claim had proceeded to trial, and had failed, so that Mr Henley remained in possession of the flat, it would have been impossible for Mrs Bloom to establish that the disrepair claim was an abuse.
- Although the order was expressly stated to be “in full and final satisfaction” of any claim Mr Henley might have in respect of improvements which he had carried out to the flat, there was no mention of any other claim
- Mrs Bloom knew that there had been issues regarding the repair of the flat (she had after all been served with notices by the Local Authority regarding the disrepair) and had failed to raise them at the time the earlier case had been settled.
- The possession claim had been brought by Mrs Bloom and Henley had not raised any counterclaim.
- A fair trial was still possible, even though the flat had been refurbished, as Mrs Bloom had access to reports done before the works, and evidence from the builders as to its condition.
So the appeal was allowed and Henley can bring his claim for disrepair. However the Judges seem to think that there is a strong possibility that he deliberately refrained from taking action any earlier (“there are grounds for thinking that Mr Henley has acted in a rather unattractive way by keeping the disrepair claim up his sleeve“), and the case leaves rather a nasty taste in the mouth. Indeed the Judges made the following suggestion regarding the forthcoming case:
Further, if the court hearing the disrepair claim took the view that Mr Henley had deliberately refrained from informing Mrs Bloom of his intended claim, knowing that she would refurbish the flat and be disadvantaged in defending the disrepair claim, it might well be appropriate to draw some adverse inferences against Mr Henley’s case.
It is possible that he may also be penalised in costs, in which case Mrs Bloom may not come out of it too badly. But I am very glad that I am not the lawyer who approved the terms of the consent order on her behalf.
For those interested, the case Henley v. Bloom is reported online.
