Osei-Bonsu v Wandsworth London Borough Council

Under the Housing Act 1988, a landlord cannot rely on a reasonable-belief defence where its belief that a joint secure tenant had ceased to reside rested on an unreasonable mistake about the effect of a notice to quit. A tenant temporarily absent under an ouster order may remain a residential occupier where there is a real hope and practical possibility of return within a reasonable time. Mitigation requires the tenant’s conduct to be assessed in its surrounding circumstances. Conduct which precipitated the chain leading to eviction may substantially reduce damages. The tenant must elect between statutory damages and continuing possession. An agreed damages valuation cannot ordinarily be reopened for the first time on appeal. A later notice to quit is effective when served on the landlord with whom the tenancy was contracted.

Wandsworth granted the respondent and his wife a joint secure tenancy. After the wife and children left following domestic violence, a court order excluded the respondent temporarily. Wandsworth accepted the wife’s short notice to quit, repossessed and re-let the property, and refused to readmit the respondent after the order was discharged.

The respondent first obtained a declaration that he remained a joint tenant until 2 August 1993. He then brought proceedings for statutory damages under the Housing Act 1988, common-law damages and a declaration that the tenancy continued. The county court awarded £30,000 statutory damages, additional damages and interest, and granted the declaration. The appeal concerned the statutory defence, mitigation, valuation, the compatibility of damages with continuing tenancy rights, and the effectiveness of the second notice to quit.

Lord Justice Simon Brown delivered the leading judgment. Lord Justices Pill and Thorpe agreed, making the decision unanimous.

1. Residential status and statutory defence. The respondent remained a residential occupier despite his temporary absence under the ouster order. A tenant who intends to return and retains a real hope and practical possibility of doing so within a reasonable time does not lose the protection attaching to occupation. Wandsworth’s refusal to readmit him therefore constituted unlawful deprivation under section 27(1) of the Housing Act 1988. The defence under section 27(8)(a) failed because Wandsworth lacked reasonable cause for its belief that the respondent had ceased to reside. Its mistake about the civil-law effect of the short notice was unreasonable in light of Hounslow LBC v Pilling [1993] 1 WLR 1242, and possession or declaratory proceedings should have been brought under section 3 of the Protection from Eviction Act 1977. Reliance on section 27(8)(b) was described as hopeless.
2. Mitigation. The judge below adopted too narrow an approach to section 27(7)(a). Following Regalgrand Limited v Dickerson & Wade (1996) 29 HLR 620, the tenant’s conduct had to be assessed in the light of all the surrounding circumstances. The respondent’s violence towards his wife was the starting point of an unbroken chain leading through the ouster order and rehousing arrangements to the dispossession. It was therefore relevant even though it was directed at his wife and might not alone have justified an outright possession order. Damages were reduced by two-thirds, from £30,000 to £10,000.
3. Valuation. The court refused permission to reopen the agreed section 28 valuation for the first time on appeal. Specific agreement on quantum was treated as final, however unwise. The court observed obiter that, if the point had been open, the precarious nature of the respondent’s tenure would have reduced the statutory damages to no more than £2,000. A further mitigation reduction would then have been inappropriate because it would penalise the respondent twice for the same conduct.
4. Election and second notice. Statutory damages and continuing possession were alternative remedies. The respondent could elect to pursue damages or retain a claim to reinstatement, but could not obtain both damages for loss of the right to occupy and a declaration that the tenancy continued. Having elected damages, his tenancy was treated as ended unlawfully at eviction. The second notice to quit was effective when served on Wandsworth. Ms Jackson had rights against Wandsworth despite receiving only a reversionary interest as against the respondent, but there was no contractual relationship between her and the respondent.

The appeal was allowed to that extent. The award was varied to £10,282.94 plus £50 interest, and the declaration of continuing tenancy was discharged.

• Court of Appeal: On 22 October 1998, the appeal from the county court was allowed in part. The statutory damages were reduced and the declaration of continuing tenancy was discharged. The judgment is reported at [1998] EWCA Civ 1594.
• Wandsworth County Court: On 18 December 1996, HHJ Compston awarded £30,000 statutory damages, £282.94 common-law damages and interest, and declared that the respondent remained a tenant.
• Court of Appeal: On 28 October 1993, by consent, the respondent was declared to have remained joint tenant until 2 August 1993.