Uddin & Anor v London Borough of Islington

For a landlord’s repairing covenant, damp caused by an inherent defect does not by itself remove liability. An ineffective damp-proof course may form part of the dwelling’s structure, whether original or installed later, and may require repair. Documents in an agreed hearing bundle are admissible as evidence of their contents unless the court orders otherwise or a party gives written notice of objection. A pleading omission justifies appellate intervention only where a serious procedural irregularity makes the decision unjust. A judge may correct a draft judgment before formal hand-down and order where short submissions disclose an error, subject to the overriding requirement to deal with the case justly.

Joint weekly tenants claimed damages from their landlord, the London Borough of Islington, for breach of repairing obligations concerning damp in a maisonette. On 6 May 2014, the County Court sitting at Clerkenwell and Shoreditch awarded them £14,680. Islington appealed on limited grounds concerning reliance on uncalled surveyors’ reports, the finding that a damp-proof course was defective, the pleading of that issue, and the correction of the draft judgment. The central questions were whether the trial judge had acted lawfully and whether any procedural irregularity had caused injustice.

Appeal dismissed. Lord Justice Lewison gave the principal judgment. Lord Justice Ryder agreed, and Lord Justice Pitchford agreed while adding separate observations.

1. An inherent defect causing rising damp did not itself absolve the landlord from liability under the repairing covenant implied by section 11 of the Landlord and Tenant Act 1985. An ineffective damp-proof course could form part of the structure, whether it was the original course or a later replacement. The reasoning in Elmcroft Developments Ltd v Tankersley-Sawyer [1986] 1 EGLR 47 was applicable.
2. Under paragraph 27.2 of Practice Direction 32, documents agreed for use at a hearing were admissible as evidence of their contents unless excluded by court order or written objection. The judge was therefore entitled to rely on the surveyors’ reports. The evidence also entitled him to infer that remedial measures had failed and that the structure had deteriorated.
3. Pleadings exist to give fair notice of the case to be met, not to create procedural traps. The principles discussed in British Airways Pension Trustees Ltd v Sir Robert McAlpine and Sons Ltd [1994] 45 Con LR 81 and McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775 supported that approach. Although the particulars did not expressly plead a defective damp-proof course, the issue was apparent from the allegations, reports and supplementary submissions. Islington had not sought further information or shown surprise or additional evidence that it would have called.
4. The pleading complaint therefore engaged CPR Part 52.11(3)(b): intervention required a serious procedural irregularity causing injustice. No injustice had resulted.
5. Until judgment had been handed down and an order made, the judge retained power to change the draft judgment. Robinson v Fernsby [2003] EWCA Civ 1820, [2004] WTLR 257 and Re: L-B (Children) [2013] UKSC 8, [2013] 1 WLR 634 confirmed that the power was not confined to exceptional circumstances. The overriding consideration was justice, and short submissions identifying an error could properly lead to correction.
6. Lord Justice Pitchford additionally stressed the need for compliance with paragraph 16 of Practice Direction 52C when renewing permission to appeal orally. Those observations did not affect the dismissal of the appeal.

• Court of Appeal (Civil Division) — On 10 March 2015, dismissed Islington’s limited appeal: [2015] EWCA Civ 369.
• County Court sitting at Clerkenwell and Shoreditch — On 6 May 2014, awarded the tenants £14,680 for breach of repairing obligations.