Zohra Khan v Tariq Mehmood & Anor.

Damages under the repairing covenant implied by section 11 of the Landlord and Tenant Act 1985 are available only from the date on which the claimant became a tenant, not from earlier occupation. Appellate restraint concerning factual findings does not prevent intervention where a serious procedural irregularity affected the trial decision. The 10% uplift recognised in Simmons v Castle [2012] EWCA Civ 1288 applies to general damages for breach of a repairing covenant. It is not confined to tariff-based assessments or excluded because damages are calculated by reference to rent. Losses capable of being special damages may attract the uplift where they have been subsumed within general damages.

The claimant, the owner of residential premises, appealed against damages awarded to the defendant for breach of the repairing covenant implied by section 11 of the Landlord and Tenant Act 1985. The district judge treated the defendant as a tenant from 2007, awarded damages by reference to a 50% rent reduction, added a 10% uplift, and gave other consequential relief. The County Court dismissed the claimant’s appeal.

The Court of Appeal considered whether the defendant’s tenancy began in 2007 or 2011, whether appellate intervention was justified, and whether the Simmons v Castle uplift applied to damages for disrepair assessed by reference to rent and including losses otherwise capable of being claimed as special damages.

Appeal allowed in part. Baker LJ delivered the judgment, with Phillips and Edis LJJ agreeing.

1. Ground 1. The pleadings and written evidence established that the defendant occupied the property before becoming the tenant under an assured shorthold tenancy in March 2011. The parties’ pleaded cases were therefore common ground on that issue. The defendant became entitled to the repairing obligation implied by section 11 of the Landlord and Tenant Act 1985 only when the tenancy began. His damages were consequently limited to 50% of the rent paid from 23 March 2011, rather than from 2007.
2. The ordinary appellate restraint identified in Fage UK Ltd v Chobani UL Ltd [2014] EWCA Civ 5 did not prevent intervention. The district judge had been misled by submissions inconsistent with the pleadings and evidence and had not considered the claimant’s filed statement. That amounted to a serious procedural irregularity affecting the factual conclusion.
3. Ground 2. The declaration in Simmons v Castle [2012] EWCA Civ 1288 was not confined to damages assessed by a tariff or guideline. The assessment of damages for disrepair is flexible: it may use a notional rent reduction, a global award, or a combination. The damages compensate for loss of amenity, including discomfort and inconvenience. The reasoning in Calabar Properties Ltd v Stitcher [1984] 1 WLR 287, Wallace v Manchester City Council (1998) 30 HLR 1111, Shine v English Churches Housing Group [2004] EWCA 434 and Moorjani v Durban Estates Ltd [2015] EWCA Civ 1252 supported that approach.
4. Claims for breach of a repairing covenant fall within the purpose of the Simmons uplift, which was to compensate successful claimants for the post-LASPO loss of recoverable CFA success fees. The uplift could apply to the whole of the general damages here. No deduction was required for losses relating to takeaway food because those losses had been subsumed within the general damages and no principled basis for deduction had been shown.

Ground 1 was allowed and Ground 2 dismissed. The damages and interest were to be reduced accordingly, with the precise figure to be agreed.

• Court of Appeal (Civil Division) — [2022] EWCA Civ 791: allowed the appeal on the tenancy commencement issue and dismissed it on the Simmons uplift issue.
• County Court at Willesden, first appeal — HH Judge Saunders dismissed the appeal against the district judge’s order; the judgment was formally handed down on 6 December 2019.
• County Court at Willesden, trial — On 14 August 2014 the district judge dismissed the possession claim, gave judgment on the counterclaim, awarded damages calculated by a 50% rent reduction from 2007, applied a 10% uplift, and ordered further relief.