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Court of Appeal backs tenant who kept disrepair claim "up his sleeve"

16 March 2010

A tenant who kept a disrepair claim “up his sleeve” during the settling of a dispute over possession should not have the claim struck out for abuse of process, the Court of Appeal has unanimously ruled.

Delivering judgment in Henley v Bloom [2010] EWCA Civ 202, Lord Neuberger, Master of the Rolls, said that although Andrew Henley had acted in a “rather unattractive way”, he had not behaved unlawfully or dishonestly.

Lord Neuberger said Henley had taken over the tenancy of a basement flat in Brighton in 1986. Shelley Bloom had bought the freehold of the building in 2001.

“At least according to the evidence which Mr Henley has produced, the flat seems to have suffered from damp ingress, which had caused the plaster on some of the walls and ceilings to perish, blow or crack, skirting boards to perish or rot, paint to flake, tiles to lose adhesion, and mould to appear in some locations,” Lord Neuberger said.

In 2002 Brighton and Hove City Council served notices on Bloom, with copies to Henley, indicating that they were “minded” to serve notices requiring works to be done to the flat. Notices were served later that year.

Bloom obtained a report on the state of the flat and obtained estimates from a local builder, but none of the work was done. In 2006 she launched possession proceedings against Henley, on the grounds that the flat was let under an assured tenancy which had been validly brought to an end.

Henley argued in his defence that no notice of termination had been served on him under section 52 of the Housing Act 1980, he had occupied the flat for 20 years and carried out improvements worth over £10,000.

Lord Neuberger said that the parties came to an agreement, formalised in a consent order in January 2007. The consent order stated that Henley should give up possession of the flat, and Bloom should pay him £16,000 plus £4,000 costs.

Henley left the flat in May 2007, but only after commissioning an expert report on the disrepair. After he left and his landlady refurbished the flat, he sued her for breach of her statutory and implied obligations to repair, claiming damages of up to £15,000.

The district judge struck out the disrepair claim for abuse of process, on the grounds that it should have been raised in the earlier possession proceedings and it would be impossible to have a fair trial. Judge Simpkiss upheld the district judge’s decision.

Lord Neuberger said the central issue was not whether Henley could have raised a disrepair claim during the negotiations over possession, but whether he should.

Given the principle that everyone with an arguable claim should be able to pursue it under article 6 of the ECHR, he said the claim could not be barred “however desirable it might have been for the claimant to have raised it earlier”.

Lord Neuberger disagreed that there could not be a fair trial, arguing that Henley had never said or done anything which led Bloom to believe he would not take action against her.

He concluded: “It may have been unattractive behaviour for Mr Henley to have kept the possibility of a disrepair claim up his sleeve for well over a year after vacating the flat, but, unless Mrs Bloom can raise an argument based on contract, estoppel or the like to defeat his claim on the basis of delay, any such argument is governed by the Limitation Act 1980.”

Lord Neuberger allowed Henley’s appeal. Lord Justice Longmore and Lady Justice Smith agreed.

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