Dodd v Raebarn Estates Ltd & Ors

Under section 4 of the Defective Premises Act 1972, a landlord's deemed repairing obligation is confined to the description of repair for which the tenancy gives a right of entry. The statutory duty concerns disrepair, rather than a general duty to make premises safe. A steep or hazardous staircase without a handrail may therefore be unsafe without being out of repair.

Where a lease authorises alterations, removing an existing feature as part of the authorised scheme does not, without more, breach a repairing covenant. Non-compliance in the replacement work may breach alteration, planning or building obligations, but those breaches do not trigger a repair-only right of entry. A later safety-feature removal still requires proof of actual disrepair. Summary judgment is appropriate where the alternative case is merely speculative and has no real prospect of success.

During a Christmas Day visit, Paul Dodd suffered catastrophic injuries after losing his footing on a staircase in a building containing leased flats. His widow and executrix sued the freeholders, the head lessee and the flat lessee. The appeal concerned only potential freeholder liability under section 4 of the Defective Premises Act 1972.

The head lease placed maintenance and repair obligations on the head lessee but gave the freeholders a conditional right to enter. The replacement staircase lacked a handrail and was steeper than the approved plans. Master Leslie granted summary judgment, and HH Judge Parkes QC dismissed the appeal, in [2016] EWHC 262 (QB) and [2016] PIQR P16. The central issue was whether the staircase constituted a relevant defect under section 4(3), or whether a right of entry under section 4(4) had been triggered.

1. Outcome. The Court of Appeal dismissed the appeal. Lord Justice Lewison gave the judgment, with Lord Justices McCombe and McFarlane agreeing.
2. Statutory route. Section 4(1) could not apply directly because the head lease placed maintenance and repair obligations on the head lessee. Section 4(4) could deem the freeholders to have an obligation only for the particular description of maintenance or repair covered by their right of entry. The exclusion in subsection (4) concerning defaults by the tenant did not prevent a duty to a non-tenant.
3. Repair and safety. Consistently with Lee v Leeds CC ([2002] EWCA Civ 6) and Alker v Collingwood Housing Association ([2007] EWCA Civ 343), maintenance or repair retained its ordinary landlord-and-tenant meaning. A repairing obligation was engaged only where the relevant part of the premises was out of repair. It was not equivalent to a duty to make the premises safe. A steep, narrow staircase without a handrail could be hazardous while remaining in repair.
4. Effect of the alterations. The lease contemplated alterations, and the freeholders were assumed to have consented to the scheme involving removal of the old staircase. Its removal as an integral part of that authorised scheme did not, without more, breach the repairing covenant. The non-compliant replacement might breach alteration, statutory-compliance or planning covenants, but those were not repair covenants and could not trigger the repair-only right of entry. Once installed, the new staircase fell within the repairing covenant. If it had never had a handrail, and there had been no later damage or deterioration, there was no relevant defect under section 4(3). The approach in Sternbaum v Dhesi ([2016] EWCA Civ 155) applied.
5. Alternative hypothesis and summary judgment. The evidence that a handrail had existed and later been removed showed only that removal was possible. It did not provide evidence that removal had occurred. Applying the summary-judgment principles in Three Rivers DC v Bank of England (No 3) ([2003] 2 AC 1) and ED & F Man Liquid Products Ltd v Patel ([2003] EWCA Civ 472), the judge was entitled to assess the whole case and conclude that the alternative hypothesis was speculative. An expectation that cross-examination might produce supporting evidence was insufficient. The appellate court should be slow to interfere with that evaluation.

• Court of Appeal (Civil Division) — In Dodd v Raebarn Estates Ltd & Ors, [2017] EWCA Civ 439, the appeal was dismissed and summary judgment for the freeholders was upheld.
• High Court of Justice, Queen's Bench Division — HH Judge Parkes QC dismissed the appeal from Master Leslie's summary judgment, reported at [2016] EWHC 262 (QB) and [2016] PIQR P16.