Sumners Limited v London Borough Of Hammersmith & Fulham

A landlord’s covenant to repair is ordinarily construed as a covenant to repair upon notice of the disrepair. An appellate court will not interfere with factual findings unless a proper basis for appellate intervention is shown. Appeals against costs orders are subject to a stringent threshold: intervention requires an error of principle, failure to take account of a material factor, consideration of an irrelevant factor, or a decision that is wholly wrong because the factors were not fairly balanced. Case management decisions concerning proportionality, hearing length and adjournments are matters for the trial judge unless the decision is irrational or otherwise erroneous in principle.

The claimant tenant operated a café, delicatessen and takeaway from premises let by the defendant local authority. It claimed damages for breaches of a repairing covenant concerning a leaking water main, collapsed ceilings and a capped chimney flue.

His Honour Judge Goldstein found liability only for damage caused by the water main after notice had been given in January 1998. He rejected the other claims. Following a five-day quantum hearing, His Honour Judge Barry Green awarded £54,345 plus interest, limited the claimant to half its quantum costs, and ordered it to pay the costs of the liability hearing.

The claimant sought permission to appeal against both decisions, challenging liability, the absence of a fuller liability judgment, the quantum assessment, alleged unfairness, case management decisions and costs.

1. Permission refused. The applications were dismissed in their entirety.
2. The finding that the landlord’s repairing obligation arose only after notice accorded with basic landlord and tenant principles. Until the landlord knew of the disrepair, it could not reasonably be expected to remedy it. The evidence did not establish earlier actual or constructive notice.
3. The criticisms of Judge Goldstein’s factual findings disclosed no arguable appeal. Assessment of witnesses and the weight of evidence were matters for the trial judge. The liability decision, as recorded in the agreed note, determined the essential issues. The claimant had proceeded to the quantum hearing without seeking a fuller liability judgment and could not properly challenge the absence of one at that stage.
4. The flue argument offered no real prospect of success. The permitted use under clause 3.12.1 was as a delicatessen, and other trade or business required written consent. On the findings, the landlord could not readily be said to owe an obligation to remove the capping to enable use of a bakery oven.
5. There was no evidence of prejudice or unfairness in the quantum hearing. The judge was entitled to emphasise proportionality and the proper use of court resources. The Civil Procedure Rules objective of dealing with cases justly includes dealing with them expeditiously and proportionately.
6. Costs were discretionary. Applying the principles in AEI Limited v Phonographic Performance Limited [1999] 1 WLR 1507, reaffirming the approach in Roache v Newsgroup Newspapers Limited [1998] EMLR 161, intervention required an error of principle, failure to consider a material factor, reliance on an irrelevant factor, or a decision that was wholly wrong. No such error was shown. The costs orders and refusal of an adjournment were rational and open to Judge Green.

• Central London County Court: His Honour Judge Goldstein determined liability on 7 March 2001.
• Central London County Court: His Honour Judge Barry Green determined quantum and costs on 15 January 2002.
• Court of Appeal (Civil Division): Permission to appeal against both decisions was refused on 2 May 2002.