Susan Coombs v Michelle Hayes & Anor

Permission to appeal requires grounds that are reasonably arguable. An appeal court may intervene for an error of law, a plainly wrong finding of fact, or a serious procedural irregularity that rendered the decision unjust. Any error must be material to the outcome.

For contractual repairing obligations, the tenant bears the burden of establishing disrepair for which the landlord is responsible and which caused the alleged loss. Water ingress or vermin infestation does not, without more, establish such disrepair or strict liability. An appeal will not succeed where the lower court’s factual findings were reasonably open to it, or where inadequate proof of loss would independently defeat the claim.

The applicant leased commercial premises from the respondents and operated a pet shop there. She claimed damages for alleged breaches of repairing obligations and the covenant for quiet enjoyment, arising from flooding and vermin infestation said to have followed adjacent Network Rail works. The respondents counterclaimed for rent arrears and dilapidations.

After a three-day trial, the judge dismissed the damages claim but allowed the counterclaim only in part, awarding £4,300 for rent arrears to the end of 2019. Permission to appeal was refused on paper. The applicant renewed the application before the High Court, advancing seven grounds concerning repairing obligations, expert evidence, rent, quiet enjoyment, disclosure, procedural fairness and loss.

1. Renewed application dismissed. None of the seven grounds was reasonably arguable. The appeal court applied the approach in Volpi v Volpi [2022] EWCA Civ 464, under which findings of primary fact should not be disturbed unless plainly wrong or rationally insupportable. Errors of law may be corrected, but an error must be material. A procedural irregularity must be serious and must render the decision unjust.
2. The trial judge had wrongly referred to negligence as part of the issues, but that error was immaterial. He addressed the claim under the lease and correctly required the applicant to establish disrepair causative of the flooding or vermin infestation and for which the landlords were responsible. The lease did not impose strict liability merely because water or vermin entered the premises.
3. The judge was entitled to find that no responsible defect causing the claimed losses had been proved. The flooding was not shown to result from a failure to maintain, and the evidence did not establish that the infestation was caused by the condition of the premises. The findings were factual conclusions open to the judge.
4. The applicant’s exclusion from the single joint expert’s inspection was arguably a procedural irregularity, and the judge should have addressed the complaint expressly. It did not, however, cause material injustice because the expert’s evidence played only a limited role in the liability analysis. The same applied to complaints about electronic bundles, missing reports and alleged document tampering.
5. The finding that the applicant owed rent at the end of 2019 was reasonably open to the judge on the documentary and oral evidence. The finding that damp caused by the later flooding reduced the rent claim was not inconsistent with rejecting the separate claim based on unproved causative disrepair.
6. The quiet-enjoyment ground was not arguable. On the findings that the landlords were not responsible for disrepair causing the flooding or vermin, those matters could not also constitute breaches caused by landlord inaction. The inadequate evidence of loss of profit provided an independent basis for dismissal.

1. High Court (King’s Bench Division): renewed application for permission to appeal dismissed.
2. County Court: His Honour Judge Harrison dismissed the damages claim and allowed part of the respondents’ counterclaim in a judgment dated 7 January 2025.
3. Permission stage: permission to appeal was refused on paper by Sir Peter Lane.