Jan & Anor v Torrance

Damages for breach of a repairing covenant are compensatory. They aim to place the tenant, so far as money can, in the position that would have existed had the covenant been performed. They are ordinarily assessed by reference to the difference in value of the premises during the relevant period, rather than by changes in property prices.

Specific performance of a repairing covenant is discretionary and appropriate where damages are inadequate. The court may consider the practical consequences of the order, including whether the works can be identified with sufficient precision and whether compliance is realistically possible. Where appropriate, performance may be made conditional on staged payment of rent arrears.

The landlords obtained possession proceedings against a protected tenant for rent arrears. The claim was struck out, and the tenant pursued a Part 20 claim for damages and set-off based principally on alleged breaches of the landlords’ repairing covenant under Landlord and Tenant Act 1985, section 11, and breaches of quiet enjoyment.

The county court awarded damages, refused specific performance of the repairing obligations, and made orders concerning set-off. On review, the damages were increased. The tenant appealed, challenging the damages awards, the refusal of specific performance, the costs order and issues concerning delay and the Human Rights Act 1998.

1. Damages for disrepair. The tenant was entitled to general damages for inconvenience and discomfort arising from breach of the repairing covenant. Under section 11(3) of the Landlord and Tenant Act 1985, the standard of repair required regard to the age, character, prospective life and locality of the dwelling. The assessment was compensatory, not punitive. The proposed measure based on rising local property values was inappropriate. The county court’s assessment of £20 per week was not shown to be erroneous.
2. Quiet enjoyment. The award of £1,500 for repeated interference, including harassment and obstruction, was within the range reasonably open to the county court. There was no basis for increasing it. No damages arose from delay in obtaining an injunction, including because the Human Rights Act 1998 was not in force when the relevant conduct occurred and the delay could not properly be attributed to the landlords.
3. Specific performance. Section 17 of the Landlord and Tenant Act 1985 made specific performance available for breach of the repairing covenant. It remained discretionary and was appropriate where damages were inadequate. The court could consider practical consequences, including the risk that a defendant might be unable to comply and thereby face contempt proceedings. The landlords’ inability to afford the works was not, by itself, a defence.
4. The existing arrangement, under which the tenant would fund repairs from rent, was ineffective because of the likely charge in favour of the Legal Services Commission under section 16(6) of the Legal Aid Act 1988. The continuing disrepair justified an order requiring the landlords to perform their obligations. However, this court lacked sufficient expert detail about the works and their duration to frame an enforceable order. The matter was remitted to the county court, with an indication that specific performance should be considered subject to staged rent payments, excluding the damages awarded to the tenant.
5. The appeal and permission applications concerning damages, costs and the Human Rights Act point were dismissed. The appeal concerning specific performance was allowed and remitted.

• Central London County Court: Judge Wakefield awarded damages for disrepair and breach of quiet enjoyment, refused specific performance, and made consequential set-off and costs orders. On review, the damages were revised.
• Court of Appeal (Civil Division): The appeal was dismissed concerning damages, costs and the Human Rights Act point. The refusal of specific performance was reversed, and that issue was remitted to the county court for further hearing.