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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Navagar & Anor v London Borough Of Hackney [2001] EWCA Civ 644 (27 April 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/644.html Cite as: [2001] EWCA Civ 644

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHOREDITCH COUNTY COURT
(His Honour Judge Graham QC)

		Royal Courts of Justice Strand London WC2 Friday 27th April, 2001

1. LORD JUSTICE RIX: This is a renewed application for permission to appeal brought by Mr and Mrs Navagar in respect of their claim against the London Borough of Hackney arising out of Hackney's refusal to consent to the Navagars' request for a three-way exchange of tenancies. That request related to two other tenancies: one that of Mrs Murphy and one that of Mrs Black.
2. A number of issues arise out of the judgment of His Honour Judge Graham QC in Shoreditch County Court. The first issue is whether clause 10 of the tenancy agreement was a clause of sufficient clarity and certainty to be enforced even if it was a term of the tenancy agreement. I am prepared to assume that it was sufficiently enforceable, at any rate in respect of the concerns expressed by the judge in that regard. There may have been an additional difficulty about enforcing the term in relation to the word "consider" which appears in the term which read:

"The Council will consider requests for mutual exchanges between tenants in accordance with its legal obligations and its relevant policies. ..."

3. However, I am prepared to assume that that difficulty would be overcome as well, seeing that it is not a point which the judge relied on against the Navagars in his judgment.
4. The second way in which the claim was put was by way of a claim for damages arising out of breach of section 92 of the Housing Act 1985. That section provides that it is "a term of every secure tenancy" that the tenant may, with written consent of the landlord, assign the tenancy to another such tenant who also has the written consent of his landlord.
5. The judge held that that implied term was not enforceable by the remedy of damages. I am prepared to assume in favour for the purposes of this application that the judge was wrong about that; at any rate that it is sufficiently arguable that he was wrong. Therefore I come to the factual basis of the judge's judgment and the applicants' complaint, namely to grounds five and six of their application, on the hypothesis that by one route or another they have an arguable case that an appropriate term sounding in damages exists in their tenancy agreement.
6. The essence of ground five is that the judge was wrong to find that the statutory conditions of written consent for all three tenants involved had not been proved. The judge deals with this at page 6C-H of his transcript. He there finds that Mrs Murphy did not even apply (by which I infer he also finds that she necessarily did not get consent) and that Mrs Black did not get consent.
7. As a result of detailed submissions to me on the facts made by Mr Luba QC on behalf of the applicants this morning and having considered the written submissions of both parties before the judge, I can now see, which I do not think it was possible for me to see in the light of the submissions before me at the paper application, that it may have been the case that the written consents for Mrs Murphy and Mrs Black (although admittedly not proven by the existence in the case papers of such written consents) may need to be inferred from the documents in the bundle (before me at pages 109 and 110). For the sake of this application I am prepared to assume that there is a sufficient argument that the judge has wrongly founded himself on the absence of written consents for Mrs Black and Mrs Murphy. I therefore proceed to ground six which is the judge's findings on damages.
8. The claim was in two parts. One was for loss of the opportunity of the right to buy the new premises and the second was the loss engendered by the unpleasantness of staying in the old premises which were unsuitable and in a poor state of repair. As for the first of those, the judge gave his reasons for saying that it was incredible to think that the Navagars would ever have been able to exercise a right to buy. He pointed out that at the relevant time they had no income other than social security; that although complaining of the absence of heating and the consequent danger to health of damp accommodation, they did not put in heating on their own account; and the judge found that Mr Navagar's financial resources were clearly "very limited". He inferred that they did not remedy the absence of heating because he was unable to do so. The judge pointed out that in cross-examination Mr Navagar had gone as far as to say that, since he had never got the new tenancy at 4 Cotesbach Road which he was seeking, "he could not be sure whether he would have been able to buy it or not".
9. Nevertheless, the evidence put before the judge by Mr Navagar and by his friend, Mr Mohammed Zina, was that Mr Zina would have been prepared to lend him the money or else guarantee a loan. Mr Zina gave evidence of previous loans, one in the substantial sum of £12,000 to enable Mr Navagar to buy a car in the past. Mr Luba has submitted to me that Mr Zina gave evidence with candour and conviction. But the judge found that Mr Zina's evidence was simply not credible. For myself I cannot see how a Court of Appeal could realistically reverse that finding of the judge or say that it was of such a kind that a retrial was necessary, at any rate on the question of damages. The Navagars had no prospect of paying a mortgage, or repaying a loan. In such circumstances Mr Zina's evidence plainly lacks credibility. In that respect I will come in a moment to another complaint made in the grounds of appeal in relation to delay in giving judgment.
10. The second aspect of the claim for damages was in respect of staying in the old house. The judge gave two reasons, in essence, for rejecting this claim. One was that in any event there had been a settlement by way of payment of £5,000 of the Navagars' claim against Hackney for breach of the repairing covenant. Mr Luba submits, and I fully understand the submission, that that may be an answer so far as the defects of the old premises were concerned, which fell within the breach of that repairing covenant, but that it did not cover the absence of heating. The difficulty for the Navagars, nevertheless, is that there was no heating in the new premises either. Mr Luba submits that Mr Zina gave evidence that he would also have paid for installing heating there. But that had not been done while the Navagars were in the old premises, and I see no prospect of challenging the judge's sceptical findings in that respect either. The judge also found that the new premises were unsuitable, not only in the absence of heating and therefore in being damp, which was of serious concern particularly for Mrs Navagar who was arthritic, but also in the stairs which were involved there. There were both stairs from the ground floor to the basement - which perhaps Mrs Navagar could have managed, as there was evidence that she could manage up to eight steps - but there were 14 steps from the ground floor to the first floor. It seems to me that even if all the arguments on liability could be surmounted on appeal, on the findings of the judge the claimants' case does not have a realistic prospect of success.
11. Having said that, I come to a final ground of appeal, namely that the judge's delay in giving judgment from the end of March 2000 to early November 2000 was such that he no longer had a good recollection of the witnesses or of the evidence. Mr Luba touched upon the delay, but did not go into details about the matter. In fairness to the judge it appears that a large part of the delay occurred through the unfortunate fact that he was waiting for written submissions, which it was agreed would be given to him by the parties following the conclusion of the hearing, but which did not reach him until late July or early August. That was not the fault of the parties who had promptly submitted those written submissions, but it appears that there were difficulties at the court which led unfortunately to a failure to pass those submissions on to the judge until, as it seems, some prompting letters from the parties awoke either the administration or the judge to the difficulties and thus to the surfacing of those documents.
12. Nevertheless, although it is possible to see, at any rate from Mr Luba's submissions on the questions of liability, that the period of gestation of the judgment may have led to some confusion at any rate of analysis as between the question of the fulfilment of the statutory conditions under section 92 and the separate question of causation which it is clear from the written submissions was extensively canvassed, nevertheless it seems to me that on the much simpler question of damages there is no reason at all to think that the judge's judgment does not reflect his clear view and his memory of the witnesses and of the simple issues involved.
13. In those circumstances, it seems to me that whatever arguments – and I can see that there are arguments to be made on the question of liability – the claim would have no realistic prospect of success on appeal on the question of damages. That is to leave out of account what was obviously an important and complex issue on causation on which, although the judge has made some findings, this application has not focused and which I have left entirely out of account.
ORDER: Application for permission to appeal refused; detailed assessment of the applicants' costs. (Order not part of approved judgment)