BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Smith v Khan [2018] EWCA Civ 1137 (17 May 2018) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1137.html Cite as: [2018] EWCA Civ 1137, [2018] HLR 31 |
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
ON APPEAL FROM THE NOTTINGHAM COUNTY COURT AND FAMILY COURT
HH JUDGE ROBERT OWEN QC
B00NG600
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE HENDERSON
and
LORD JUSTICE NEWEY
____________________
JOY SMITH |
Claimant/ Appellant |
|
- and - |
||
MOHAMMED RIAZ KHAN |
Defendant/ Respondent |
____________________
Mr Brynmor Adams (instructed by The Bar Pro Bono Unit) for the Respondent
Hearing date : 13 February 2018
____________________
Crown Copyright ©
Lord Justice Patten :
"The daily rate award is arguably outside the range of awards made in other cases. However the appeal court will in addition wish to hear argument on:-
(a) the basis of calculating the award given the terms of ss. 27 and 28, Housing Act 1988 and the measurement of damages described in McGregor on Damages, 19th Ed, para 37-069 onwards,
(b) the number of days/nights for which general damages should be awarded. This was a precarious tenancy. Should the period in question be limited to the period for which the Claimant could lawfully remain in possession had a lawful notice to terminate been served?
(c) whether any account should be taken of rent arrears."
"38. In the circumstances I am satisfied that on the same evidence which was before the District Judge, albeit not taken into account by her or in the Claimant's arguments, there was an adequate evidential basis to establish implied surrender or abandonment of the tenancy and premises which is traceable, without interruption, to 4th March 2015 and that the Defendant had accepted that abandonment unequivocally by service of his amateurish so-called 'notice to quit' on the basis that his tenant had gone missing and no longer occupied the premises and could not or would not meet the financial obligations arising under that tenancy.
39. Had the Claimant sought a pre-emptive injunction under section 33(3), in accordance with the guidance to which I have already referred, her right of occupation, protected by the Act, may have been protected, at least in the short term but no application under that Act was made. The time for acting would have been on or before 15th April 2015, during which time the Claimant had notice of the Defendant's intentions.
40. It follows that, in light of the same evidence before the District Judge, on 15th April 2015, in my judgment, the claimant's home rights of occupation under the 1996 Act had in fact and in law been extinguished by the husband's unilateral surrender or conduct. Miss Cafferkey submitted that this approach or this effect of section 30(8)(b) was incorrect for it would otherwise unilaterally deprive the Claimant of her statutory rights. But that is a risk which such a person with such rights as the Claimant had established runs in this particular context. That is why there is a statutory remedy or relief available to her – if sought.
41. It is in these circumstances difficult to see how a period in excess of, say, 28 days could have been secured by the Claimant. That is, the Claimant's ability to remain in occupation would be limited by the operation of section 3 of the 1977 Act. I have considered whether a longer period might reasonably be preferred but I am satisfied that the Court could not and should not, for example, take into account the Claimant's strategy of defending proceedings for the sake of prolonging unjustified occupation until a formal (contested) order had been obtained. Absent that factor, it is difficult to see what rational or fair basis there could be for allowing the Claimant in excess of 28 days in those circumstances, where on these facts she had no continuing right of occupation."
Surrender
Damages
Lord Justice Henderson :
Lord Justice Newey :