Lee v Lasrado

An appeal is limited to reviewing the lower court’s decision unless a rehearing is required in the interests of justice. Fresh evidence is generally excluded. A procedural irregularity justifies intervention only where it made the decision unjust. A statutory defence on liability cannot assist at a damages hearing. Alleged tenant conduct permits mitigation only where, considering all the circumstances, it is reasonable to reduce the damages; the assessment is discretionary and cannot be mathematically precise.

The defendant appealed against County Court orders refusing to set aside earlier orders and awarding the claimant £24,600 for unlawful eviction, harassment, loss of belongings and related matters. He argued that he was not the landlord, that the damages hearing had been unfair, and that he should have been permitted to rely on statutory defences and mitigation. He also sought to adduce late evidence concerning advice allegedly given by the court. The central issues were whether the appeal court should receive that evidence, whether any procedural irregularity rendered the damages decision unjust, and whether the award was outside the appropriate range.

1. The appeals were dismissed. The evidence established overwhelmingly that the appellant held himself out as the landlord and had managed the property. His late argument that his wife was the landlord was unsupported by evidence and was inconsistent with his conduct and previous statements.
2. Under CPR52.11, an appeal is ordinarily a review. A rehearing is available only where the interests of justice require it, and fresh evidence will not ordinarily be received. The proposed evidence from Mrs Cudd emerged very late, was not credible in the circumstances, and was excluded.
3. The contemporaneous attendance note was substantially reliable. The appellant had been able to respond to the damages evidence, and an adjournment would have served no useful purpose given the history of the proceedings and the nature of his response.
4. The defence under section 27(8)(a) of the Housing Act 1988 concerned liability and was irrelevant to quantum. The proposed reliance on section 27(7)(a) did not establish conduct sufficient to mitigate damages. Applying the approach in Regalgrand Limited v Dickerson & Wade [1996] 74 E & CR 312, mitigation depended on all the circumstances and involved a discretionary judgment.
5. The awards for general damages, statutory compensation, harassment, aggravated damages and exemplary damages fell within appropriate ranges. The special damages award was supported by the judge’s acceptance of the claimant’s credible evidence.
6. Under CPR52.11(3), an appeal requires a decision that was wrong or unjust because of a serious irregularity. Applying Hayes & Others v Transco PLC [2003] EWCA Civ 1261, a serious irregularity alone was insufficient; the decision had also to be unjust. That threshold was not met.

• High Court (Queen's Bench Division): Permission to appeal out of time was granted, and permission was also granted in relation to the earlier refusal to set aside default judgment. The appeals against the County Court orders were dismissed.