Grand v Gill

A landlord’s repairing covenant is not engaged by condensation caused solely by a design defect unless the condensation produces physical damage falling within the covenant. Plaster forming part of, or applied to, walls and ceilings is part of the structure of the dwellinghouse, rather than merely a decorative finish. Damage to such plaster is therefore actionable disrepair. Where a landlord is wholly responsible for one component of damage but only contributes to another, damages should compensate the first in full and reflect the landlord’s partial contribution to the second. Interest should run from a fair date related to the loss, not automatically from issue of the claim.

The tenant claimed damages from her landlord for breaches of covenant concerning damp and mould, water ingress, an inadequate boiler and quiet enjoyment. The trial judge found that design-related condensation was the principal cause of the damp, but awarded only 10 per cent of the damp-related damages because inadequate heating was the landlord’s principal contribution. He awarded total damages of £5,600.

The tenant appealed against the discount applied to the damp-related damages and the failure to award interest. Her claim for special damages was abandoned. The central issue was whether damaged plasterwork formed part of the structure of the flat under the tenancy covenant and section 11(1)(a) of the Landlord and Tenant Act 1985.

The appeal was unanimously allowed in part.

1. Repairing liability. The court applied the principle in Quick v. Taff Ely Borough Council [1986] QB 809 that condensation caused by a design defect does not itself engage a repairing covenant, but physical damage falling within the covenant does.
2. Meaning of structure. Rimer LJ accepted the working definition in Irvine v. Moran (1992) 24 HLR 1; [1991] 1 EGLR 261, namely that structure concerns essential elements material to the overall construction of the dwellinghouse and contributing to its appearance, stability and shape. The concept is context-sensitive and is not confined to load-bearing elements. The concessions made in Quick and in Staves & Staves v. Leeds City Council (1991) 23 HLR 107 meant that those decisions did not determine whether plaster formed part of the structure. Niazi Services Ltd v. van der Loo [2004] 1 WLR 1254 had left the issue undecided.
3. Plasterwork. Rimer LJ held, with Lloyd LJ and Thomas LJ agreeing, that plaster forming part of or applied to walls and ceilings is part of the structure of the relevant premises. The contrary conclusion in Irvine v. Moran was not correct. Mr Gill was therefore fully liable for the loss caused by failure to repair the damaged plasterwork, while the remaining damp-related loss was discounted to reflect only his contribution. The court assessed that head at £1,275 and increased total damages to £6,275.
4. Interest and costs. Interest should have been awarded at 2 per cent on £6,275 from 1 December 2007 to 7 May 2009, rather than from issue of the claim. Applying section 194(3) of the Legal Services Act 2007, the court summarily assessed costs at £2,500, payable within 14 days to The Access to Justice Foundation.

1. Court of Appeal (Civil Division) — on appeal in Grand v Gill [2011] EWCA Civ 554, the court varied the order, increased the damages award to £6,275, awarded interest, and made a costs order payable to a prescribed charity.
2. Central London County Court — His Honour Judge Karsten QC ordered the landlord to pay £5,600 damages on 7 May 2009.