Petersson & Ors v Pitt Place (Epsom) Ltd

Where an appellate judgment undermines part of the basis for lower-court orders, the orders cannot remain in force if the relief cannot be separated into identifiable and uncontentious components. The proper course is to set the orders aside and remit the relevant matters for reconsideration, even where the claimant may still be entitled to substantial relief. The court must address the legal effect of the orders actually made, rather than speculate about the result after reassessment.

The tenants in Petersson & Ors v Pitt Place (Epsom) Ltd appealed from orders made by the Central London County Court on 8 February and 14 March 2000. The county court had awarded damages for breach of repairing covenants and ordered specific performance. On 19 January 2001, the Court of Appeal allowed the landlords’ appeal on the construction of the repairing covenant, holding that the roof terraces of flat 51 did not form part of the main structure for that purpose. The matter was restored to determine whether the original orders should remain in force pending remittal. The central issue was whether orders based on undifferentiated sums could stand when part of their basis had been undermined.

The appeal was allowed and the lower-court orders were set aside. Lord Justice Laws delivered the substantive judgment, and Mr Justice Penry-Davey agreed.

1. The Court of Appeal’s earlier judgment had held that the roof terraces serving flat 51 were outside the landlords’ repairing covenant. Although the appeal had not concerned damage emanating from the main roof, the damages awards made by the county court were single sums. They did not distinguish between damage attributable to the main roof and damage attributable to the terraces.
2. At least part of the necessary basis for the county court’s orders had therefore been undermined. The orders could not stand. If left in force, the tenants would theoretically remain entitled to enforce the full amounts immediately, despite the appellate decision.
3. The possibility that the tenants might ultimately recover substantial sums did not alter the position. The same approach applies in a damages appeal where liability remains established but the award is excessive and cannot be divided in an identifiable and uncontentious manner. The order should be set aside and the matter considered afresh, even though some damages are plainly recoverable.
4. The order was accordingly drawn to include the words setting aside the relevant county court orders. The matters of damages, specific performance and costs were remitted to the Central London County Court. The appellants were awarded the costs of the restored hearing, subject to detailed assessment. The court declined to preserve the orders as security, observing that the law provided appropriate remedies for any liability ultimately established.

• Central London County Court: Judgment given on 8 February 2000 and order made on 14 March 2000, awarding damages for breach of repairing covenant, ordering specific performance and dealing with costs.
• Court of Appeal (Civil Division): On 19 January 2001 the landlords’ appeal on the permitted construction issue was allowed. On 23 February 2001 the court ordered that the lower-court orders be set aside and remitted damages, specific performance and costs for further consideration.