Morshead Mansions Ltd v Di Marco

A statutory duty backed by a specified criminal sanction does not ordinarily confer a private civil remedy. The question depends on construction of the legislation as a whole. A private action may arise where Parliament intended to protect a limited class and to confer a right to recover legally recognised damage.

Where the statute confers no right to damages, the commission of the statutory offence does not itself entitle an affected person to an injunction. Sections 21 and 22 of the Landlord and Tenant Act 1985 therefore provide no private right to damages or to a mandatory injunction compelling compliance. Their criminal sanctions, the wider statutory code and Parliament’s express creation of civil remedies elsewhere preclude the necessary implication.

A residential tenant requested summaries of service-charge costs and facilities for inspecting supporting documents under sections 21 and 22 of the Landlord and Tenant Act 1985. The landlord did not comply, and the tenant sought mandatory orders compelling performance.

HH Judge Hand QC held that the statutory obligations were enforceable only through their criminal sanctions. On appeal, Mann J held that tenants had a direct civil enforcement remedy: [2013] EWHC 1068 (Ch); [2013] L & TR 27. The landlord appealed to the Court of Appeal.

The central issue was whether sections 21 and 22, which create summary offences but state no civil remedy, impliedly permit a tenant to obtain a mandatory injunction compelling compliance.

1. Appeal allowed unanimously. Sections 21 and 22 of the Landlord and Tenant Act 1985 do not confer a private civil remedy. Mann J’s contrary conclusion was wrong, and the decision of HH Judge Hand QC was restored.

2. Whether breach of a statutory duty enforced by a criminal sanction also gives rise to a private action is a question of construction. The starting presumption is that an obligation which Parliament enforces in a specified manner cannot be enforced by another method. An exception may arise where Parliament intended to protect a limited class and to confer a private right of action for legally recoverable damage. The statutory scheme must be examined as a whole.

3. The wider legislation governing residential service charges constituted, in substance, a statutory code. Parliament had repeatedly amended that regime and had expressly provided civil consequences in other provisions. These included contractual implications, rights to withhold service charges and express powers to make mandatory orders in defined circumstances. By contrast, sections 21 and 22 had long contained only criminal sanctions. A further remedy could therefore arise only by necessary implication, and the statutory context excluded that implication.

4. The tenant could not identify the kind of recoverable damage necessary to support a private action. Personal injury and property damage could not arise. The possibility of irrecoverable costs in related tribunal proceedings was too slender, and costs incurred in litigation between the same parties are generally not recoverable as damages. Mere adverse effect or harm is insufficient.

5. Where legislation confers no private right to damages, the fact that its breach is criminal does not itself support an injunction. An injunction requires an independent common law or equitable cause of action. Although the tenant’s lease appeared to contain a contractual obligation to provide information, the court expressed no view on relief for the pleaded contractual breach.

1. Court of Appeal (Civil Division): By [2014] EWCA Civ 96, unanimously allowed the landlord’s appeal and held that sections 21 and 22 of the Landlord and Tenant Act 1985 did not confer a private civil remedy.
2. High Court, Chancery Division: Mann J allowed the tenant’s appeal and held that the duties were directly enforceable in the civil courts: [2013] EWHC 1068 (Ch); [2013] L & TR 27.
3. County Court: HH Judge Hand QC held that the tenant could not obtain a civil order compelling compliance with sections 21 and 22.