Plender v Hyams

On a second appeal, permission should be granted only where the appeal raises an important point of principle or practice, or where there is another compelling reason for the Court of Appeal to hear it. A consent order must be construed as a whole and in its factual and procedural context, rather than by isolating the absence of an express limit on a rent-free period. Where the order links rent abatement to repair works and the tenant’s need to vacate, the period may end when the premises are sufficiently habitable for satisfactory reoccupation, even if minor snagging work remains. An alternative construction and the adverse effect of a possession order do not, without more, constitute a compelling reason under CPR 52.13(2)(b).

The claimant tenant occupied a studio flat owned by the defendant landlord. In earlier proceedings concerning disrepair, the parties entered into a consent order under which the landlord undertook to carry out specified works and the tenant undertook to vacate. The order provided a rent-free period whose construction became disputed.

The High Court, on appeal from the earlier proceedings, upheld the possession order but varied the monetary judgment. It held that the rent-free period ended when the works had reached a stage at which the tenant could satisfactorily return, rather than when every item of work was complete. The claimant renewed an application for permission to bring a further appeal. The central issues were the construction of the consent order and whether the second appeal raised an important point of principle or practice or another compelling reason for the Court of Appeal to hear it.

1. Application dismissed. Lord Justice Pill refused the renewed application for permission to appeal. The matter was a second appeal, governed by CPR 52.13, and permission could be granted only if the proposed appeal raised an important point of principle or practice, or if there was some other compelling reason for the Court of Appeal to hear it.
2. The consent order had to be construed as a whole and in the context of the parties’ dealings when it was made with the assistance of solicitors. Its provisions linked the rent-free period to the carrying out of the works and the tenant’s need to be absent from the premises. They contemplated a short period, with time of the essence and liberty to apply providing remedies if the works were not completed rapidly.
3. The judge below was entitled to conclude that the rent-free period ended when the premises had become sufficiently complete for the tenant to move back and live there satisfactorily. It was not necessary that every final detail, including snagging work, had been completed. The agreement did not give the tenant a rent-free period for so long as any work in the schedule remained outstanding.
4. Although the possession order had a substantial effect on the claimant and an alternative construction could be argued, those matters did not provide a compelling reason for a further appeal. There had already been two thorough hearings, and the proposed appeal did not meet the second-appeal threshold. The possession order remained outstanding.

• Court of Appeal (Civil Division): Lord Justice Pill refused the renewed application for permission to appeal and ordered that the application be dismissed. The possession order remained outstanding.
• High Court of Justice: Park J, on 24 July 2001, upheld the possession order made in the earlier proceedings and reduced the monetary judgment.