Jan & Anor v Torrance

In a permission application arising from a disrepair counterclaim, an apparently impracticable remedial order can provide an arguable ground of appeal. Where an assisted tenant is authorised to pay for repairs and set the expenditure off against rent, the Legal Aid Act 1988 may impose a first charge over the resulting recovery, including damages or costs. The court should consider whether landlord performance, specific performance, or an ancillary order would provide effective relief. A judge may assess disrepair damages pragmatically as an overall figure. A complaint about delay does not justify permission where the material discloses no court fault or discretionary error.

The applicant was a tenant whose landlords had obtained possession proceedings against him. His counterclaim for disrepair and breaches of the covenant of quiet enjoyment proceeded after the landlords were debarred from defending it on quantum.

The Central London County Court awarded damages for disrepair and harassment. It also authorised the applicant to arrange outstanding repairs himself, with the expenditure set off against rent. He sought permission to appeal against the damages awards, the repair mechanism, and the refusal of an injunction relating to harassment and delay.

The central issues were whether the proposed challenges were arguable and whether the repair order created an unresolved difficulty because of the Legal Services Commission’s statutory first charge.

1. Disposition. Lord Justice Mance granted permission to appeal on the grounds concerning the harassment damages and the repair order. The challenge to the disrepair damages was stood over for consideration by the full court. Permission was refused on the complaint concerning delay and the injunction application.
2. Disrepair damages. A judge assessing loss caused by want of repair was entitled to take a pragmatic overall view of the prejudice shown by the reports and photographs and to fix a flat figure. The increase in rent did not, on its face, require a different method of assessment. The landlords’ profits and increases in property values did not represent profit from their breach of obligations to the tenant.
3. Harassment and quiet enjoyment. The allegations disclosed possible continual misconduct over a long period. Mance considered that there was an arguable basis for contending that the reduced damages award was too low, so permission was appropriate.
4. Repair order and statutory charge. Section 16(6) of the Legal Aid Act 1988 created a first charge for the Commission over property recovered or preserved for an assisted party, including damages and costs. The order requiring the assisted tenant to spend money on repairs could therefore create a corresponding liability. The alternative remedy appeared impracticable. The basic relief was performance by the landlords, but their unreliability had led the lower court to adopt the alternative order. Mance expressed no concluded view on whether specific performance, coupled with an ancillary order authorising a third party or the tenant to undertake the works, could avoid the difficulty.
5. Delay and human rights. The material disclosed no fault by the court and no error in the judge’s discretionary refusal of an injunction. Reliance on the Human Rights Act therefore did not justify permission on that ground.

• Court of Appeal (Civil Division) — Permission to appeal was granted on the harassment damages and repair-order grounds. The disrepair damages point was stood over for the full court. Permission was refused on the delay and injunction ground.
• Central London County Court — His Honour Judge Wakefield awarded damages for disrepair and breach of quiet enjoyment and authorised the tenant to undertake outstanding works, with the expenditure set off against rent.