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||Neutral Citation Number:  EWCA Civ 202
||Case No: B5/2009/1597
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
His Honour Judge Simpkiss
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MASTER OF THE ROLLS
LORD JUSTICE LONGMORE
LADY JUSTICE SMITH
|| ANDREW HENLEY
||- and -
(Transcript of the Handed Down Judgment of
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Mr Jan Luba QC and Mr Michael Paget (instructed by Brighton Housing Trust)
for the Appellant
Mr Guy Fetherstonhaugh QC and Mr Simon Sinatt (instructed by Osler Donegan Taylor) for the Respondent
Hearing dates : 9 February 2010
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Neuberger MR:
- The issue on this appeal is whether the courts below were right to hold that, on the grounds of abuse of process and impossibility of a fair trial, the former tenant of a flat was disentitled from bringing proceedings against his landlady for damages which allegedly arose from breaches of her repairing covenant.
The factual background
- Mr Andrew Henley was granted a tenancy of the basement flat ("the flat") at 14 Devonshire Place Brighton ("the building") in about 1986. In September 2001, Mrs Shelley Bloom acquired the freehold of the building, and became Mr Henley's landlady. By virtue of section 11(1)(a) of the Landlord and Tenant Act 1985, Mrs Bloom was liable, subject to certain qualifications and extensions, "to keep in repair the structure and exterior of the premises (including drains, gutters and external pipes)". One exception to that liability is in section 11(2)(a), which excludes "works or repairs for which the lessee is liable by virtue of his duty to use the premises in a tenant-like manner".
- 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. While it would be wrong to express a concluded view on the issue, it appears very likely that this had come to the attention of Mrs Bloom by 2003, as a result of inspections of the flat by her agent and contractors, and from complaints made by Mr Henley to Mrs Bloom or her agent.
- In October 2002, Brighton and Hove City Council ("the Council"), served notices on Mrs Bloom, with copies to Mr Henley, indicating that they were "minded to" serve formal notices on her requiring certain works to be done to the flat and to the building, as they were "in such a state of disrepair" and "substantial works of repair" were "necessary to bring" the building and the flat "up to a reasonable standard". The schedules to the notices contained fairly detailed descriptions of remedial work which was said to be required. They included references to renewing and repairing doors, door frames, woodwork and window sash cords of the flat, removing damp plaster in the flat, and mending a rainwater pipe and repairing brickwork on the exterior of the building. In November 2002, it appears that such formal notices were served by the Council, again with copies served on Mr Henley.
- It seems pretty clear that, presumably as a result of these notices, Mrs Bloom then obtained a report as to the state of the flat, as she received an estimate from Bensleys, a building works company, for "damp proofing, replastering and associated internal works" to the flat. That estimate referred to a "report dated 20th February 2003". None of the work referred to on the estimate was done. It seems that a further specification of work was prepared at Mrs Bloom's request in September 2006.
- In 2006, Mrs Bloom sold the freehold of the building to the tenants of the upper part, and, at the same time, she was granted back a long lease of the flat: accordingly, she remained Mr Henley's landlady. In August 2006, she issued proceedings in the Brighton County Court against Mr Henley seeking possession of the flat on the ground that it was let under an assured shorthold tenancy which had been validly brought to an end.
- In October 2006, Mr Henley filed a defence contending that Mrs Bloom was not entitled to possession of the flat. His first argument was that he was a regulated tenant under the Rent Act 1977, and that there were no grounds for possession under that Act. His alternative argument was that, if possession could otherwise be sought on the ground that he was a shorthold tenant, no notice had been served on him under section 52 of the Housing Act 1980. Section 55 of the 1980 Act provides that, if a landlord seeks possession on the basis that the tenancy is a shorthold which has been determined, he either must show that a notice had been served on the tenant at the start of the tenancy under section 52 or he must satisfy the court that, despite the absence of such a notice, it would be "just and equitable" to make an order for possession. Mr Henley's defence therefore included a further contention that it would not be just and equitable to order possession, because (i) he had occupied the flat for 20 years, (ii) he had carried out improvements to the flat costing "in the region of £10,400", (iii) he was in poor health, (iv) he would not find other accommodation, (v) Mrs Bloom had become "a landlord by purchase".
- The parties then entered into negotiations, the upshot of which was an agreement which was recorded in a consent order dated 25 January 2007 ("the consent order"). The consent order stated that (i) Mr Henley should give up possession of the flat on or before 1st June 2007, (ii) Mrs Bloom should pay Mr Henley's solicitors £16,000 in specified instalments; (iii) this money was not to be paid to Mr Henley until he had vacated the flat; (iv) Mrs Bloom should pay Mr Henley's costs in the sum of £4,000. The order had three introductory recitals. The first was that the parties had reached agreement; the second recited that "the payments to be made by [Mrs Bloom] to [Mr Henley] pursuant to this Order are in full and final settlement of any claim that [Mr Henley] might have arising from work improvements or enhancements undertaken by him or on his behalf to the [flat]"; the third recital said that Mr Henley would give up possession of the flat pursuant to the agreement "in good tenantable repair and condition".
- Mr Henley vacated the flat on 1st May 2007, but, before doing so, he commissioned a report on the extent of disrepair and dampness in the flat from a Mr Sennett, who is an experienced environmental health officer, and describes himself as an "Environmental Health & Housing Consultant". Mr Sennett produced a report dated 28 April 2007 identifying wants of repair and items of dampness in the flat. Mr Henley did not raise the question of disrepair with Mrs Bloom until after he had vacated and after she had had significant works of refurbishment carried out to the flat around July 2007. When Mr Henley raised his claim for damages for disrepair, Mrs Bloom's solicitors raised a number of arguments. Those arguments included the point that much of the disrepair was due to Mr Henley's breaches of covenant, a contention based at least in part on what the builders refurbishing the flat had reported to Mrs Bloom. Another point raised by Mrs Bloom's solicitors was that Mr Sennett's report did not link the defects in the flat to any specific failure by Mrs Bloom, and this led to a second report from Mr Sennett dated 7 November 2008, stating that there was such a link, and describing what it was.
The instant disrepair claim
- Three weeks later, on 28th November 2008, Mr Henley issued the instant proceedings in the Brighton County Court, alleging that Mrs Bloom had been in breach of her statutory obligation to repair (and in breach of an implied obligation to repair and in breach of her covenant for quiet enjoyment) "from about September 2001 to 1st May 2007", "by allowing water ingress/water penetration into the [flat] thereby causing dampness to the interior structure and wall plasters", and citing the first 2007 report of Mr Sennett and the 2003 report of Bensleys. This was then alleged to have led to "loss, damage, distress and inconvenience" to Mr Henley, as it had caused the flat to be "damp, unsightly, odorous and unpleasant to occupy", and it had resulted in damage to some of his possessions. He claimed damages "not exceeding £15,000".
- On 5th January 2009, Mrs Bloom filed a defence and counterclaim. She first contended that the proceedings were an abuse of process as the disrepair claim should have been raised in the possession proceedings. She then went on to deny any breach of her repairing obligations, and also contended that "[t]he interior conditions ... and any appearance of damp in the [flat] was caused" by Mr Henley allowing condensation to collect, preventing ventilation by sealing the windows and the like, installing defective plumbing and central heating systems, and causing radiator leaks. Relying on those allegations, Mrs Bloom counterclaimed for damages for Mr Henley's failure to comply with his implied covenant to use the flat in a tenant-like manner, and his failure to comply with his obligation under the recital in the consent order to give up possession of the flat in good tenantable repair and condition.
- Mrs Bloom applied to strike out Mr Henley's claim ("the disrepair claim") on the ground that it was an abuse of process, because it ought to have been raised in the earlier possession proceedings ("the possession claim"), and because it would be impossible to have a fair trial of the disrepair claim.
- The application came before District Judge Taylor on 3rd March 2009. He decided to strike out the disrepair claim on both grounds. He said that there was no good reason for Mr Henley not having raised the disrepair claim during the course of the possession claim and that he "was not putting his cards on the table" during the negotiations which settled that claim. He said that the disrepair claim "ought to have been brought in the earlier proceedings", and was "eminently capable of being settled in those proceedings". Accordingly, he concluded, the claim was an abuse of process. He also concluded that it would be impossible to have a fair trial as Mrs Bloom was "now in a position in which she cannot instruct an expert to inspect the alleged defects in the flat." In that connection, the District Judge also relied on the fact that Mr Henley had failed to comply with Pre-Action Protocol for Housing Disrepair Cases ("the Protocol").
- Mr Henley appealed, and, on 16 June 2009, his appeal came before His Honour Judge Simpkiss, who upheld District Judge Taylor's decision. On abuse of process, it was argued that the District Judge had approached the issue too broadly, and, presumably as a result, Judge Simpkiss's reasoning was rather narrower, more focussed. He relied on the fact that "the state of the property was raised in the possession proceedings and in the negotiations that led to the consent order", and also on the fact that "the tenant agreed that he would deliver up the property in good condition". Accordingly, as the condition of the flat was raised both in the argument contained in the pleadings and in the agreed terms contained in the consent order, he concluded that it was an abuse of process to raise a subsequent claim for damages for disrepair of the flat. As to the fair trial issue, Judge Simpkiss said that Mrs Bloom "would be fighting the case with one hand behind her back" and that the unfairness "had been caused entirely" by Mr Henley. Accordingly, he agreed with the District Judge on the fair trial issue as well.
- Mr Henley's application for permission to appeal was rejected by Lloyd LJ, who, after considering the papers, took the understandable view that the case did not justify a second appeal. However, following an oral hearing, which raised additional points to those made in the written application, Arden LJ granted permission to appeal.
The case law
- Abuse of process was considered by the House of Lords in Johnson v Gore Wood & Co (a firm)  2 AC 1. As Lord Bingham of Cornhill explained at  2 AC 1, 23D-E, "the abuse in question need not involve the reopening of a matter already decided in proceedings between the same parties, … but, as Somervell LJ put it in Greenhalgh v Mallard  2 All ER 255,257, [it] may cover 'issues of fact which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.'" At  2 AC 1, 31A, he described "the underlying public interest" as being that "there should be finality in litigation and … a party should not be twice vexed in the same matter".
- As Lord Bingham emphasised at  2 AC 1, 31C, it would be "wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive." He then went on to say that the question of whether later proceedings were an abuse involved "a broad, merits-based judgment which takes into account the public and private interests involved and also takes account all the facts of the case …". Lord Bingham also rejected the notion that the fact that the first proceedings had been settled, rather than going to trial, made any difference; indeed, as he said, "often … that outcome would make a second action all the more harassing" –  2 AC 1, 32H-33A.
- In his opinion, Lord Millett explained at  2 AC 1, 59G, that "it does not follow" from the fact that a potential claimant "could have brought his action as part of or at the same time as the [earlier] action" "that he should have done so or that his failure to do so renders [a later] action oppressive … or an abuse of the process of the court." He then made the point at  2 AC 1, 59H-60A that there was no "presumption against the bringing of successive actions", and the "burden should be always rest on the defendant to establish that it is oppressive or an abuse of process for him to be subjected to the second action." Lord Millett also agreed with Lord Bingham that the principle applied equally where the first action had ended in a settlement rather than a judgment, saying that it was "necessary to protect the integrity of the settlement, and to prevent the defendant from being misled into believing that he was achieving a complete settlement of the matter in dispute when an unsuspected part remained outstanding" –  2 AC 1, 59B-C.
- In relation to abuse of process, we were also referred to the subsequent decision of this court in Stuart v Goldberg Linde (a firm)  1 WLR 823. At  1 WLR 842, paragraph 65, Lloyd LJ referred to the fact that the cases "include many reminders that a party is not lightly to be shut out from bringing before the court a genuine cause of action". At paragraph 71, he rejected the "general proposition" that a claimant who "comes to know" in the course of proceedings "of an additional cause of action .... which is quite different from that asserted in his existing claim" comes under an obligation to inform the defendant of that additional cause if "it would not be reasonable ... to expect [the claimant] to seek to combine" the two causes of action. As Lloyd LJ indicated, the issue is highly fact-sensitive.
- Sir Anthony Clarke MR considered that "parties should [not] keep future claims secret merely because a second claim might involve other issues", and, "[i]n particular", they "should not keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future" –  1 WLR 823, paragraph 96. However, as he went on to indicate in paragraph 98, much depended on the particular facts, and "the question is not simply whether the claimant acted unreasonably in not raising [the second] claim, or indeed whether his failure to do so was an abuse of process". "The question is", as he said, "whether the second action is an abuse of the process, which involves a consideration of all the circumstances....".
- The question to be considered on the issue of whether a fair trial is possible has been authoritatively stated by Chadwick LJ in these terms in Taylor v Anderson and Taylor Brothers Plant Hire Ltd  EWCA Civ 1680, at paragraph 11. He said that "proceedings ought not to be struck out unless an unequivocal affirmative answer can be given to the question: is there a substantial risk that a fair trial is impossible?"
Was bringing the disrepair claim an abuse of process?
- The first question to consider on the abuse of process issue is whether Mr Henley could have raised the disrepair claim at the time that the possession claim was on foot. Mr Luba QC, for Mrs Henley, contends that he could not have done so, as he had not obtained an expert's report, and he needed expert evidence to establish his case. Indeed, Mr Luba goes further and says that, even after Mr Sennett's first report, Mr Henley could not have got the disrepair claim off the ground, as it was only after the second report, which linked the damp in the flat to the alleged breaches of repairing covenant, that the basis of the disrepair claim was properly constituted.
- I accept that, when considering an abuse argument, there is no "general principle that a potential claimant is under a duty to exercise reasonable diligence ... to find out the facts relevant to whether he has or may have ... a claim", as Lloyd LJ said in Stuart  1 WLR 823, paragraph 59. However, on the facts of this case, I consider that Mr Henley had easily enough information at the time of the possession claim to justify the conclusion that he could at least have raised the disrepair claim, and, indeed, to justify the conclusion that he could have brought the claim. Mr Henley knew that the flat had suffered from damp ingress since 2001; he had complained to Mrs Bloom about it on a number of occasions; he knew since 2002 of the Council's view that Mrs Bloom should carry out the works specified in at least one of the "minded to" notices to deal with that damp; he could have got a report in or after 2004 from Mr Sennett or another expert, and had no further information when he did so in April 2007; further, the documents available at the moment suggest that Mr Henley consciously held back from raising the disrepair claim while the possession claim was being settled in late 2006 and early 2007.
- In these circumstances, at least in the absence of a compelling reason to the contrary (and there is none), the fact that Mr Henley did not instruct Mr Sennett until April 2007 cannot, in my view, entitle Mr Henley to say that he could not have raised, indeed could not have brought, the disrepair claim during the currency of the possession claim in late 2006 or early 2007. This conclusion is reinforced by the Protocol, which envisages a landlord being notified "as soon as possible" of any arguable disrepair, and only then an expert (namely a single joint expert) being appointed to report on the matter – see paragraphs 3.2 and 3.3 of the current, October 2007, version.
- The District Judge was impressed by the fact that Mr Henley could have brought, or at least could have raised, the disrepair claim during the currency of the possession claim. But that is not enough to establish that the subsequent bringing of the disrepair claim constitutes an abuse. As is clear from the opinions of Lords Bingham and Millett in Johnson  2 AC 1, the central issue is not whether Mr Henley could, but whether he should, have raised the disrepair claim during the negotiations pursuant to which the possession claim was settled. However desirable it may be for a party to bring all his claims forward in one go, the abuse principle, as the judgments in Stuart  1 WLR 823 underline, does not bar a claim simply because someone fails to raise a claim when he could have done so. The facts must be such that the second action amounts to an abuse of process before it can be struck out.
- The importance of the general principle that every person with an arguable claim should be able to pursue it in court is enshrined in Article 6 of the European Convention. As Sir Anthony Clarke MR indicated in Stuart  1 WLR 823, paragraph 98, if the court is not satisfied that a claimant's attempt to raise his claim is actually abusive in the light of his previous failure to raise it, the claim cannot be barred from proceeding however desirable it might have been for the claimant to have raised it earlier.
- In that connection, there are two principal reasons, which, particularly when considered together, and with a number of other factors, persuade me that, even though it could have been raised at the time that the possession claim was proceeding, raising the disrepair claim in 2008 did not amount to an abuse.
- My first principal reason is that the two claims involved different issues. The possession claim did not involve the question of whether the flat was out of repair, let alone whether any disrepair was the liability of Mrs Bloom or had resulted in loss to Mr Henley. I do not share Judge Simpkiss's view that the condition of the flat was in issue during the course of the possession claim. The fact that Mr Henley relied on his having carried out improvements to the flat as a reason for not making an order for possession seems to me to have nothing of any significance to do with any of the issues raised in the disrepair claim. It may be part of Mrs Bloom's case that some of those improvements contributed to the ingress of damp into the flat but that would be wholly insufficient to support the contention that disrepair was in some way in contention, or of potential relevance, in the possession claim.
- It is also true that there was a provision in the consent order which referred to the state of the flat, but that was concerned with Mr Henley's obligation in relation to the state of the flat at the end of the tenancy. It had nothing to do with the extent of any failure to repair by Mrs Bloom during the currency of the tenancy, let alone the extent of any damage thereby suffered by Mr Henley. Thus, the issues in the disrepair claim were not "clearly part of the subject-matter of the [possession claim]" so as to render, at least in the absence of any other factors, the disrepair claim an abuse, to adopt the words of Somervell LJ in Greenhalgh  2 All ER 255, 257, quoted with approval by Lord Bingham in Johnson  2 AC 1, 23E.
- Secondly, Mr Fetherstonhaugh QC, who appears for Mrs Bloom, accepted (in my view realistically and rightly in the light of the point I have just discussed) that, if the possession claim had proceeded to trial, and had failed, so that Mr Henley remained in possession of the flat, it would have been impossible for Mrs Bloom to establish that the disrepair claim was an abuse. Indeed, he was (again rightly, in my view) inclined to accept that the disrepair claim would not have been an abuse if the possession claim had proceeded to trial and had succeeded. In other words, the essence of Mrs Bloom's case as developed before us was that, given that the possession claim was compromised on the terms contained in the consent order, the subsequent bringing of the disrepair claim represents a challenge to "the integrity" of that compromise, to use Lord Millett's expression in Johnson  2 AC 1, 59B.
- As I see it, however, that argument runs into the obvious difficulty that the parties have spelt out, in the consent order, the extent to which they intended their agreement to shut out any further claims: the £16,000 payment and £4,000 contribution to costs was expressly stated to be "in full and final satisfaction" of any claim Mr Henley might have in respect of improvements which he had carried out to the flat, and there is no mention of any other claim. It is therefore, in my view, difficult to see how it could be argued that the disrepair claim, which is plainly outside the ambit of that sort of claim, was "a matter in dispute" in respect of which Mrs Bloom was "misled into believing that [s]he was achieving a complete settlement" to quote again from Lord Millett in Johnson  2 AC 1, 59C.
- Further, this is not a case where only the potential claimant, Mr Henley, could have been expected to think of, or raise, the possibility of the disrepair to the flat, and, therefore, of the possibility of a disrepair claim at the time the possession claim was being settled. Mrs Bloom had been served by the Council with the "minded to" notices, and the subsequent notices in 2002 and 2003, she had had the flat inspected, and she had received complaints about its disrepair from Mr Henley. Given the terms of the consent order, it can be said with some force that it was as much up to her to have raised it as it was up to Mr Henley. This is much the same point which I think Lloyd LJ had in mind in Stuart  1 WLR 823, paragraph 70, where he referred to the defendant being "as well able to draw conclusions as to" the existence of a possible [second] claim "as the claimant was" at the time of the first action, and to there being "no disparity of knowledge" between the parties.
- In addition, the possession claim had been brought by Mrs Bloom, and Mr Henley had brought no counterclaim, whereas the disrepair claim is, of course, brought by Mr Henley against Mrs Bloom. So this is not a case of Mr Henley bringing a second claim against Mrs Bloom, or even raising a claim which could have been invoked as a defence in the earlier possession claim. I am not suggesting that this would prevent the disrepair claim being an abuse as a matter of principle. However, it seems to me that, where an action is brought by a claimant who was simply a defendant in an earlier action involving the same parties, it is more difficult to argue that the later action is an abuse than where the same person was claimant in both actions.
- I have already said that I consider that Mr Henley could have brought the disrepair claim, and could certainly have raised the possibility of the disrepair claim, before the possession claim was settled. However, I think it is of some potential assistance to his contention that there is no abuse here, that he had no expert report as to the extent or cause of the disrepair in the flat up to the time that the possession claim was settled. Given that the evidence and submissions suggest that he may have intentionally kept the disrepair claim up his sleeve during the settling of the possession claim, I do not, on the facts of this case, regard this as a strong point in Mr Henley's favour. It would obviously have had more force if he had been unaware of the possibility of a disrepair claim until after he had settled the possession claim.
- I would therefore reject the contention that, by bringing the disrepair claim after the possession claim had been settled, Mr Henley was abusing the process of the court. If, in due course, the court hearing the disrepair claim was satisfied that costs have been unnecessarily increased as a result of the claim being brought after the possession claim had been settled, rather than being raised by Mr Henley in the settlement negotiations which culminated in the consent order, then, as Smith LJ said in the course of argument, it may be appropriate to reflect that fact in an appropriate manner in any costs order made in the disrepair claim.
Is a fair trial possible?
- In my view, the contention that there could not be a fair trial is not possible to sustain. It is true that Mr Henley has reports prepared in 2007 from an expert who had inspected the flat that year specifically for the purpose of identifying the existence and cause of any defects in the flat, whereas Mrs Bloom has no such reports. It is also true that Mrs Bloom does not appear to have, and cannot now obtain, such a report, and that she would very probably have obtained one if Mr Henley had told her, before she carried out refurbishment works to the flat, that he intended to sue her for damages for disrepair.
- However, there is no suggestion that Mr Henley said or did anything which led Mrs Bloom to think that he would not bring a claim against her for damages for disrepair. Indeed, she had been aware of the existence, or at the very least the possible existence, of disrepair in the flat for a number of years, and subject to the abuse argument, which I have rejected, she had no reason to think that he had abandoned the possibility of making a claim against her in that connection. 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.
- It is, I suspect, for this reason that Mrs Bloom takes her stand on the argument that there cannot be a fair trial. I accept that, while Mr Henley does have two detailed reports from Mr Sennett dealing with the condition of the flat, and the causes of the ingress of damp, in 2007, it seems pretty clear that Mrs Bloom does not have any such detailed reports at any rate as at 2007. However, it also seems clear that Mrs Bloom does have some reports and sources of information, which she could rely on and put before the court. The fact that most of these sources of information relate to a period or periods before 2007 is no problem: Mr Henley's claim is based on disrepair going back to November 2002 (a claim in respect of any earlier period being time-barred).
- It is likely that Mrs Bloom will have had a report on the building, including the flat, when she acquired it in 2001. She certainly has the Council's "minded to", and subsequent, notices in 2002 and 2003. Mr Henley was thereafter contacted by Philip Hall Associates, Chartered Building Surveyors, who may well have produced a report for Mrs Bloom. Whether or not that is the case, it seems clear that she had a report as to the state of the flat from Bensleys in February 2003. There may well have been a survey or report prepared for the purpose of the sale and leaseback transaction in 2006: this may have resulted in the further specification which Mrs Bloom appears to have commissioned in September 2006, a document which may also be of assistance to her.
- Furthermore, the builders who carried out the refurbishing works after Mr Henley had vacated were sufficiently aware of the state of the flat to have been able to report in some detail to Mrs Bloom as to the causes of the damp and consequent problems in the flat. That is clear from what her solicitors said in correspondence in 2008 and what is in her counterclaim. Thus, it appears incontrovertible that Mrs Bloom has some evidence relating to the condition of the flat between 2002 and 2008, and, while it is unlikely that she has any report as detailed or directed to the disrepair claim as Mr Sennett's reports as at 2008, it is very likely that she has some expert information available to her in respect of the state of the flat between 2002 and 2006 which is of real value and relevance and is not available to Mr Henley.
- It is not unusual for one party in litigation to be better informed or better advised than the other, for one party to have first hand evidence of important events which is not available to the other, or for one party to have stronger expert evidence than the other. Such inequalities normally cannot possibly justify a conclusion that the trial cannot be fair, even where the advantaged party can be said to be in some way to be responsible for the inequality. Of course, if the inequality is very substantial and very prejudicial, and especially if it is attributable to the actual wrongdoing of the advantaged party, the court might conclude that a fair trial cannot be achieved. But this is not such a case.
- Quite apart from the expert evidence which appears to be available to Mrs Bloom, her lawyers will be able to cross-examine Mr Sennett, whose duty as an expert will, of course be to tell the truth and to assist the court, and not to assist his client. Further, if the court hearing the disrepair claim took the view that Mr Henley had deliberately refrained from informing Mrs Bloom of his intended claim, knowing that she would refurbish the flat and be disadvantaged in defending the disrepair claim, it might well be appropriate to draw some adverse inferences against Mr Henley's case. I do not pretend that either of these points will necessarily provide a complete answer to any imbalance which may exist in the parties' evidence, but they should serve to mitigate any such imbalance.
- In these circumstances, I consider that Mrs Bloom has failed, by quite a significant margin, to establish that there cannot be a fair trial of the disrepair claim. Although she will probably be at a disadvantage, it will not, on any view, be a very substantial or extraordinary disadvantage, and it is a disadvantage for which the court can make allowances. Further, although there are grounds for thinking that Mr Henley has acted in a rather unattractive way by keeping the disrepair claim up his sleeve, he has not behaved in any way unlawfully or dishonestly, and it was not a claim which can be said to have come entirely out of the blue so far as Mrs Bloom was concerned.
- For these reasons, I would allow this appeal.
Lord Justice Longmore:
- I agree.
Lady Justice Smith:
- I also agree.
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