Jafari v Tareem Ltd

An appellate court should not reconsider an evaluative decision afresh. It may interfere only where there is an identifiable flaw, such as a gap in logic, inconsistency, or failure to take account of a material factor. The same stringent restraint applies to findings of primary fact and inferences drawn from them.

Damages for loss of amenity may properly be assessed by reference to a percentage of the property’s rental value, although no fixed tariff applies. The appellate question is whether the award falls outside the range of permissible awards.

Where an appeal raises unresolved legal questions that cannot affect the overall result, the court may decline to decide them.

Dr Jafari, a dentist and tenant of premises in Brighton, appealed against a County Court judgment following a five-day landlord and tenant trial. The landlord had undertaken extensive redevelopment works to the adjoining parts of the building, causing noise, scaffolding, obstruction and physical damage.

The trial judge awarded Dr Jafari damages for physical damage and loss of amenity, but rejected his claim for loss of profits. The judge concluded that the landlord had taken all reasonable steps to minimise disturbance, having regard in part to a complete waiver of rent during the works.

The appeal challenged the legal approach to quiet enjoyment, the weight given to the rent waiver, factual findings, the causation finding on loss of profits and the amount of damages for loss of amenity.

1. Appeal dismissed. The challenges to the factual findings and evaluative assessments did not satisfy the stringent appellate tests.
2. On an appeal from an evaluative decision, the appellate court does not conduct the balancing exercise afresh. It must identify a flaw in the first-instance reasoning, such as a gap in logic, inconsistency or failure to take account of a material factor. The same restraint applies to findings of primary fact and inferences. It is insufficient that another conclusion might have been open.
3. The trial judge was entitled to find that noisy works were generally confined to restricted hours, despite some breaches of the arrangement. The evidence provided a rational basis for that conclusion, and the appellate court could not recreate the trial judge’s immersion in the whole evidence.
4. The judge was also entitled to conclude that the redevelopment works did not cause the claimed loss of profits. The accounts, absence of contemporaneous complaints and other evidence supported that conclusion. The principle that causation may sometimes be inferred from the nature of proved negligence and loss did not require that conclusion to be reached.
5. For loss of amenity, using a percentage of rent was a permissible method of quantification. There was no fixed tariff, and the award was not outside the range of permissible awards. The appellate court should not tinker with a broad-brush award for non-pecuniary loss.
6. The court declined to determine whether financial compensation could be considered when deciding whether works were reasonably carried out, or only when assessing damages. Even if the appellant’s legal arguments were correct, the rent waiver would have adequately compensated the disturbance. The unresolved points therefore could not justify disturbing the overall result.

• High Court (Chancery Division): Appeal against the County Court judgment and order dated 28 December 2018 dismissed.
• County Court at Central London: Following a five-day trial, judgment was given for the landlord on arrears and for the tenant on parts of the counterclaim, including physical damage and loss of amenity.