Heffernan v London Borough of Hackney

An appellate court may uphold dismissal of a damages claim without deciding disputed liability where every head of loss remains unproved. A claimant must plead the damage claimed, explain its calculation, and prove both the loss and its causal link to the alleged wrong. Unsupported assertions, uncorroborated evidence and estimates based on unverified information may justify rejecting the claim. A late fallback to a lesser figure does not require the judge to make an award, particularly where the pleaded claim was materially exaggerated. Physical damage claims are distinct from economic-loss claims, but the cost of repair must still be proved. Issues concerning the underlying cause of action may remain unresolved where the appeal fails on proof of damage.

Mr Heffernan, the freehold owner of a property, appealed against the dismissal by HHJ Simpson in the Mayor and City of London County Court of his claim for more than £100,000 against the London Borough of Hackney. The council had served repair notices under Part VI of the Housing Act 1985, allegedly without notifying the mortgagee. The notices were later treated in criminal proceedings as invalid or ineffective, and those proceedings were abandoned.

The claim alleged negligence and breach of statutory duty. It sought repair costs, loss of rent and the cost of repairing alleged physical damage to the roof caused by council workers. The trial judge assumed, without deciding, that liability had been established but rejected each head of damage for want of proof. The council cross-appealed on liability, causation and the assumed duty of care. The central issue was whether the judge was entitled to dismiss the claim on damages without determining liability.

Appeal dismissed. Lord Justice Aikens gave the principal judgment. Lady Justice Smith agreed. Lord Justice Sedley agreed that the appeal failed on the narrow ground that none of the heads of damage had been proved.

1. The first two heads of claim, comprising repair expenditure and lost rent, were claims for economic loss. They raised substantial unresolved issues of liability and causation. Because the judge was entitled to reject the claims on proof of damage, remitting the case for findings on liability was unnecessary.
2. The claimant had not proved the cost of the repairs. The judge was entitled to reject the original claim of £51,000, the unsupported evidence of expenditure of £30,000, and the fallback figure of £19,255. Applying Senate Electrical Wholesalers Ltd v Alcatel Submarine Networks Ltd [1999] 2 Lloyd’s Rep 423, a claimant must plead the damage and the method of calculation, and should plead an alternative approach. A claimant who advances an exaggerated claim cannot complain if the judge declines to construct a lesser claim from figures raised only in evidence or submissions.
3. The lost-rent claim was also properly rejected. There were no adequate rental comparables, and the claimant had not established when the necessary works were completed. On the evidence, the flat could not in fact have been let until those works were done. The judge was therefore entitled to find either that the alleged negligence had not caused the loss or that the amount of loss had not been proved.
4. The roof claim was legally distinct because it concerned alleged trespass and physical damage. Even assuming that council workers had trespassed and damaged the slates, the claimant had not proved the £3,500 repair cost. The surveyor’s statement merely repeated an unverified cost estimate. Nominal damages might have been available for trespass, but that alternative had not been argued.
5. The court did not determine the council’s cross-appeal. Sedley LJ nevertheless expressed obiter doubts about the assumed causes of action. He identified no public-law principle making an otherwise valid notice void because a copy was not served on a third party, and no authority giving the recipient a cause of action for expenditure incurred in complying with the notice or loss caused by failing to comply. He noted that Trent Strategic Health Authority v Jain [2009] UKHL 4 might have been conclusive on that issue, irrespective of the special facts of Welton v North Cornwall District Council [1996] 1 WLR 570.

• Court of Appeal (Civil Division): Appeal against the order of HHJ Simpson dismissed the claim. The council’s cross-appeal was not determined because it was unnecessary.
• Mayor and City of London County Court: HHJ Simpson dismissed the claim on the basis that the repair costs, lost rent and roof-repair costs had not been proved.