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Cite as: [2018] EWCA Civ 1137, [2018] HLR 31

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Neutral Citation Number: [2018] EWCA Civ 1137
Case No: B5/2016/3146


Royal Courts of Justice
Strand, London, WC2A 2LL
17 May 2018

B e f o r e :



- and -



Ms Annette Cafferkey (instructed by Hopkins Solicitors LLP) for the Appellant
Mr Brynmor Adams (instructed by The Bar Pro Bono Unit) for the Respondent

Hearing date : 13 February 2018



Crown Copyright ©

    Lord Justice Patten :

  1. This is an appeal by the claimant, Mrs Joy Smith, against an order of HH Judge Robert Owen QC dated 2 June 2016. In order to explain the basis of Mrs Smith's appeal to this court it is necessary to begin with the background to the claim and the procedural history. Both can be described as somewhat extraordinary.
  2. The claimant, Mrs Smith, is a national of Nigeria. She was granted leave to remain in November 2013 but has no entitlement to state benefits. She is married to Mr Roger Smith. In June 2014 the defendant, Mr Khan, granted to Mr Smith an assured shorthold tenancy of a flat ("the Property") at 92A Sneiton Boulevard, Nottingham for a term of 12 months. The rent was £300 per month payable in advance and was funded out of Mr Smith's housing benefit. On 4 March 2015 Mr Smith left the Property and disappeared. Initially neither his wife nor anyone else knew where he had gone. It later transpired that he had travelled to Scotland to find work seemingly because he was under pressure and worried about possible arrears of rent.
  3. When they finally made contact, he told Mrs Smith that his benefits had been stopped and the rent not paid. He said that he could not face telling her. He had gone to Scotland where he had secured a contract to do some plastering work.
  4. What is not in dispute is that Mr Khan, who was also concerned about the arrears and about Mrs Smith's ability to continue to pay the rent on the Property, handed her a letter on 1 April 2015 in which he purported to give Mr Smith notice to terminate the tenancy. Mrs Smith sought advice from the Notts Housing Advice Centre who wrote to Mr Khan pointing out that the notice was invalid and unenforceable and that although Mrs Smith was not the tenant of the Property, she had a legal right to occupy it. This was a reference to s.30 of the Family Law Act 1996 ("FLA 1996") to which I will return later. The Advice Centre warned Mr Khan that he must obtain a court order if he wished to obtain possession of the Property.
  5. On 15 April Mrs Smith went to the housing benefit office to see if she could apply for housing benefit. While she was away Mr Khan entered the Property and changed the lock. On returning she was unable to get in. She tried to contact Mr Khan without success. She sought advice from Housing Aid and the local authority but was told that she had no entitlement to assistance because of her immigration status and because she was not in priority need. She could find no accommodation and ended up sleeping on the floor at the house of a friend where she remained for many months. She suffers from diabetes and other health problems.
  6. Mrs Smith obtained legal advice and Hopkins Solicitors wrote to Mr Khan a letter before action on 20 April 2015 in which they said that Mrs Smith would commence proceedings for unlawful eviction unless he contacted them to confirm he was willing to allow Mrs Smith back into the Property. Mr Khan replied on 22 April 2015 saying that he had let the Property to Mr Smith for his personal occupation as the sole tenant and that Mrs Smith was a trespasser.
  7. The present proceedings were issued on 11 May 2015 seeking an order for Mrs Smith's re-instatement. A hearing took place on 18 May 2015 when District Judge MacMillan made an order re-instating Mrs Smith and preventing Mr Khan from seeking to exclude her from the Property.
  8. But after the hearing it emerged that Mr Khan had re-let the Property to another tenant and was unable or at least unwilling to comply with the order for re-instatement. Mrs Smith did, however, attempt to retrieve her belongings which had been left in the Property and at the end of June 2015 they were handed over. Mr Khan had stored them in some 40 black bin liners in a basement under his shop premises on the ground floor. Due to the damp conditions, most of the clothes and other belongings were ruined.
  9. The claim against Mr Khan proceeded as one for damages. A directions hearing took place on 18 May when a trial was fixed for 8 October. The parties were directed to file and serve witness statements and skeleton arguments. Mr Khan contended that Mr Smith had abandoned the Property and must be taken to have surrendered the tenancy by operation of law. Mrs Smith's case was that there had been no surrender and that she was entitled to damages both for unlawful eviction and for the damage to her Property.
  10. The trial took place before District Judge Nicolle on 8 October. Mr Smith was still living and working in Scotland and did not attend. Mrs Smith's evidence was that she remained in contact with her husband and that he was intending to return to Nottingham. Mr Khan's evidence was that Mr Smith had left in March owing rent and with no explanation of where he was going. He accepted that Mrs Smith had told him that her husband would be back. Subsequently he had been able to speak to Mr Smith himself who also said that he intended eventually to return. Mr Khan said that Mrs Smith had not complained when she came to collect her belongings and that Mr Smith had told him on the phone that he did not need any of the goods and belongings left at the Property and that Mr Khan should dispose of them.
  11. The judge directed the parties to lodge written closing submissions following the hearing. In his closing submissions Mr Khan contended that Mrs Smith had failed to establish that the Property had had been her marital home or that her marriage still subsisted. All the documentation, including the tenancy, was in Mr Smith's name and he had failed to attend or give evidence supporting Mrs Smith's case that she lived there. There was evidence from Mr Khan's daughter that she had been told by Mr Smith that the marriage had broken down. As to the tenancy, it was contended that Mr Smith had abandoned the Property when he went to Scotland leaving only rubbish behind. The locks had been changed to avoid problems with squatters or vandals. Mr Khan had been authorised by Mr Smith to dispose of any of his belongings which had been left behind. He had tried to arrange for Mrs Smith to collect her own belongings but for a period of some 6 weeks she made no contact about them. When she did turn up she took the belongings which she wanted. Mr Khan said that there had been no harassment of Mrs Smith and that she was an opportunist living in the UK under a sham marriage and eager to exploit the opportunity of making a false claim.
  12. District Judge Nicolle produced a judgment in writing which she handed down on 14 December 2015. The judgment contains a lengthy summary of the evidence but it is less than clear in a number of places whether the judge is merely reciting the evidence that was given or is making a finding of fact. The judgment does, however, find (at [117]) that up to the point on 1 April 2015 when the notice was served no indication had been given by Mr Smith that he intended to surrender his tenancy. The judge was also satisfied that Mr and Mrs Smith were lawfully married in May 2011 and remained married at all material times. The effect of s.30(4)(b) of the FLA 1996 was therefore that Mrs Smith's occupation of the Property fell to be treated as occupation of the Property by her husband and the tenancy therefore continued as an assured tenancy under the Housing Act 1988 ("HA 1988") until lawfully terminated by a possession order. The Property, the judge held, was occupied by Mrs Smith as the marital home and she occupied the Property as her only or principal home in March and April 2015: see [124].
  13. Since Mr Khan did not obtain a possession order before evicting Mrs Smith, the District Judge awarded Mrs Smith damages for trespass and damages for the Mr Khan's unlawful interference with her belongings that were left in the Property. She also made awards of aggravated damages (£1,500) for injury to feelings; exemplary damages (£1,200) and damages for harassment (£500). Special damages for the loss of Property were assessed at £1,000 but the most controversial element of the damages was the amount awarded for trespass. Mrs Smith sought a rate of £220 per night by way of general damages but the judge awarded her £40 per night by reference to the amount of rent payable (£9.86 per day) with an uplift to take account of what she described as Mr Khan's flagrant disregard of the law and the consequences which it had for Mrs Smith. In the order made on 14 December 2015 Mrs Smith was therefore awarded a total of £14,773.37 (which figure in fact comprised a miscalculation, as subsequently noted by HH Judge Robert Owen QC) together with her costs. The damages for trespass covered the period from the unlawful eviction until the date of judgment on the basis that the tenancy either was continuing or would have continued until then had Mr Khan not acted unlawfully.
  14. Mrs Smith sought to appeal against the quantum of the award in respect of general and exemplary damages. She contended in her grounds of appeal that the award of general damages for trespass should have been calculated at the rate of £200 per day for the 243 days from the eviction on 15 April until the making of the order on 14 December 2015. This would amount to £48,600. The award of exemplary damages should have been £3,000 bringing the total damages awarded to £54,613.37. Permission to appeal was granted by HH Judge Godsmark QC on 15 February 2016 but only in respect of the appeal against the quantum of general damages for trespass. As part of his written reasons for granting permission on ground 1, the judge said:
  15. "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."
  16. These issues were addressed in the skeleton argument filed on Mrs Smith's behalf by Ms Cafferkey. The effect, she said, of s.30(4) of the FLA 1996 was that the tenancy granted to Mr Smith continued despite his absence from the Property after April 2015 and could only be brought to an end by a surrender or an order for possession. The District Judge had found that there had been no surrender and the earliest that a possession order could have been obtained against Mr Smith would have been after the expiry of the fixed term of the tenancy in June 2015. A condition for an earlier termination is that the tenancy agreement should provide for it (see HA 1988 s.7(6)) which in this case it does not. Mr Khan would have needed to give at least 2 months' notice after the expiry of the contractual term so that the earliest realistic date on which possession would have been ordered and obtained was in October 2015. The tenancy would have continued until that date.
  17. Damages for trespass in unlawful eviction cases are now routinely assessed on the basis of a daily rate by reference to all the circumstances of the case including the ability of the claimant to find alternative accommodation and any other aggravating features. The skeleton argument filed on behalf of Mrs Smith refers to decided cases in which the range of awards has been in the region of £150-£200 per day but it has sometimes been more. The District Judge's award was therefore, it was said, considerably out of line and it was wrong of her to have reduced the award to £40 per day by reference to the rent payable under the existing tenancy. The award is intended to compensate Mrs Smith for being left homeless.
  18. The appeal came on for hearing before HH Judge Robert Owen QC on 13 May 2016. There was no cross appeal by Mr Khan but he attended the hearing with a friend who was allowed to make representations and who handed the judge some written submissions mostly confined to alleging that this was a fraudulent claim. The judge gave an ex tempore judgment allowing Mrs Smith's appeal on the basis that the District Judge had erred in assessing the daily rate of damages for trespass. He held that the correct rate was £130 per day and that there was no basis for interfering with the period in respect of which damages had been awarded. However, on 16 May the parties were informed by letter that the judge had recalled his ex tempore judgment because it contained a "plain mistake" which the judge wished and was bound to correct before his order was perfected. The mistake referred to related to the period of time covered by the award. The District Judge, the letter said, was plainly wrong to have awarded damages for a period of 232 days. The correct period was 76 days (15 April to 30 June 2015) which was the maximum period during which the tenancy would have continued had it been lawfully terminated by Mr Khan at the earliest opportunity. On that basis the judge proposed to award general damages for trespass in the sum of £9,880 and would provide a written judgment explaining his reasons.
  19. On receipt of the letter Mrs Smith's solicitors requested a further hearing which took place on 23 May 2016. Ms Cafferkey referred the judge to s.30(8)(b) of the FLA 1996 and to the finding by the District Judge that there had been no implied surrender of the tenancy. The judge reserved his judgment which was delivered ex tempore on 2 June 2016. Although there had, as I have said, been no cross appeal by Mr Khan against the District Judge's finding that there had been no implied surrender, the judge said that the award of damages for trespass had to be limited to the period before the date when the defendant landlord did or could lawfully obtain possession. This required him to decide whether there had been an implied surrender of the tenancy by Mr Smith and, if not, the date by which Mr Khan could lawfully have obtained possession of the Property. Judge Owen held that the tenancy had been surrendered with effect from 15 April 2015 after Mr Smith had disappeared off to Scotland and Mr Khan had served his notice to quit. Although Mrs Smith had been unlawfully evicted, her only protection was under s.3 of the Protection from Eviction Act 1977 and in those circumstances the correct period for the purpose of calculating damages was 28 days from 15 April.
  20. The judge said:
  21. "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."
  22. The judge therefore set aside the District Judge's order of 4 December 2015 and substituted for her award of £9,280 in respect of general damages an award in the sum of £3,640. The result therefore of Mrs Smith's appeal was a reduction rather than an increase in her general damages on the basis of a finding that there had been an implied surrender of the tenancy as of 15 April 2015 which was a point which neither party had taken on the appeal. The overall award has been reduced from £14,773.37 to £7,853.37. The judge made no order for costs save for the public funding assessment of Mrs Smith's costs.
  23. Mrs Smith now appeals against Judge Owen's order with the permission of Floyd LJ. The grounds of appeal are (1) that on the facts as found by the District Judge there had been no implied surrender of the tenancy; (2) that the judge was wrong to limit damages to the 28 days' notice required under the Protection from Eviction Act 1977. Damages were payable up to when the landlord could lawfully have obtained possession under a court order which in this case would have taken a number of months not least because the landlord had not registered the tenant's deposit and would have had to return it before commencing proceedings; and (3) that the hearing before Judge Owen was procedurally unfair because it was determined on the basis of an argument that neither party had relied on and which was not the subject of any cross appeal by Mr Khan.
  24. Mr Khan has cross-appealed against the judge's substitution of £130 per day for the rate of £40 per day adopted by the District Judge. On this basis, the award of general damages for trespass would be further reduced to £1,120 for the 28 day period from 15 April 2015. As part of this appeal Mr Khan contends that he did not either in his witness statement nor in cross-examination accept that Mr Smith had paid a deposit and that no deposit was in fact paid.
  25. Before turning to the various grounds of appeal it is useful to set out some of the statutory framework relevant to an assured shorthold tenancy and to the various claims for damages which Mrs Smith brought against Mr Khan. On the District Judge's findings, the Property was let unfurnished to Mr Smith on 30 June 2014 for a period of one year at a rent of £300 per month. The tenancy document refers to a deposit but provides no figure. It also states that the tenancy should be terminable by either party on the giving of 4 weeks' notice.
  26. It is common ground that the agreement created an assured shorthold tenancy on the basis that the Property was occupied by Mr Smith as his only or principal home: see s.1(1) and s.19A HA 1988. An assured tenancy cannot be brought to an end by the landlord except by an order of the court obtained under s.7 or s.21 HA 1988: see s.5(1)(a). An exception is made for a fixed term tenancy which contains power for the landlord to determine it but the notice which Mr Khan gave to Mr Smith was not for a period of 4 weeks as required under the tenancy agreement. The result therefore was that the notice was of no effect and Mr Smith remained entitled to possession of the Property under the tenancy for at least its fixed term and would, without more, have been entitled to continue in possession after 30 June 2015 as a periodic tenancy until it was determined by a court order for possession or by surrender: see s.5(2).
  27. Under s.7 HA 1988 the court could not have made a possession order except on one of the grounds specified in Schedule 2. Possession can be obtained on certain of those grounds during the currency of the fixed term but only if the tenancy agreement makes provision for that to happen which in this case it did not: see s.7(6). Of those grounds only those based on arrears of rent (Grounds 8 and 10) would seem to be applicable but the landlord must also serve notice under s.8 of his intention to commence proceedings unless the court disposes with the requirement under s.8(1)(b). In the alternative, the court must make a possession order in respect of a fixed term assured shorthold tenancy if satisfied that the term has come to an end and the landlord has given not less than 2 months' notice in writing to the tenant stating that he requires possession: see s.21(1).
  28. None of these alternative routes to possession were followed by Mr Khan so that, absent a surrender, the tenancy would have continued contractually until 30 June 2015 and would have continued thereafter as a periodic tenancy under s.5(2) provided that the Property continued to be Mr Smith's principal home. Mrs Smith retained a right under s.30(2)(a) of the FLA 1996 not to be evicted from the Property except under a court order. Her rights were, however, only co-extensive with the continuation of her husband's tenancy (see s.30(8)(b)) so that in the event that this was brought to an end by surrender or a court order her protection would cease: see s.30(1)(a). The only rider to this is that Mrs Smith's occupation of the Property during the continuation of her marriage is treated for the purposes of HA 1988 as occupation of the Property by her husband so that Mr Khan could not contend that the conditions for an assured tenancy under s.1(1)(b) HA 1988 (occupation of the dwellinghouse as the tenant's only or principal home) were no longer satisfied merely because Mr Smith had departed for Scotland and was no longer in physical occupation of the Property.
  29. I should also mention the Protection from Eviction Act 1977. This protects the residential occupier of premises by making it an offence for anyone to deprive him unlawfully of his occupation of the premises unless that person believed or had reason to believe that the residential occupier had ceased to reside in the premises: see s.1(1), (2). Section 3 also makes it unlawful to recover possession against the occupier of premises under a former unprotected tenancy which has come to an end except by court proceedings: see s.3(1). Section 5 requires any notice to quit to be at least 4 weeks in duration and to be in a prescribed form.
  30. Since Mr Khan failed to comply with any of these statutory provisions, he had no defence to the claim for damages based on Mrs Smith's unlawful eviction from the Property on 15 April and the issue remains one of quantum. Judge Owen's analysis was that Mr Smith had in effect surrendered his tenancy by leaving to work in Scotland and not responding adversely to the notice which Mr Khan gave to Mrs Smith on 1 April 2015. If the correct view was that Mr Smith did surrender his tenancy with effect from the date when Mr Khan re-took possession then Mrs Smith's right to continue to occupy the Property under s.30 of the FLA 1996 would also have come to an end leaving her with at most an entitlement to remain until the making of a court order in accordance with s.3 of the Protection from Eviction Act. The judge held that she was entitled to damages for trespass for a period of 28 days from her unlawful eviction on 15 April 2015 on the assumption that she would not have contested any possession proceedings which Mr Khan brought against her.
  31. Surrender

  32. It has never been suggested that Mr Smith expressly agreed to surrender his tenancy and the finding by Judge Owen that there had been a surrender by operation of law on or about 1 April 2015 requires there to be a finding that the tenant has acted in a way which demonstrates unequivocally that he has abandoned or terminated the tenancy. If the landlord acts in reliance on this by, for example, re-taking possession of the premises then the tenant is estopped from disputing that the tenancy has come to an end: see Ealing Family Housing Association Ltd v McKenzie [2003] EWCA Civ 1602 at [30].
  33. I am prepared to accept Mr Adams' submission that the court needs to look at all the relevant background evidence in assessing whether Mr Smith acted inconsistently with the continuation of the tenancy but I do not accept that in this case there was an unequivocal indication by him that he wished to give up his tenancy prior to the service of the 1 April notice. It is important to bear in mind that the issue of surrender had not been raised on the appeal. The only issue concerned the daily rate of damages and Judge Owen was asked to consider this matter on the basis of the findings made by the District Judge. The District Judge found that Mr Smith never gave any indication to Mr Khan that he intended to surrender the tenancy; that Mrs Smith remained in possession of what was their matrimonial home; that she was unwilling to give up possession; and that the flat contained many of their possessions. There was no voluntary surrender of possession in this case. Mr Khan, by his own admission, re-took possession because there were arrears of rent and because he did not regard Mrs Smith as having any right to remain in the Property. The notice served on 1 April 2015 said in terms that notice was being given because Mr Smith was missing and, despite Mr Khan's attempt to contact him, he had not got in touch.
  34. There was on these findings of fact no unequivocal representation or conduct by Mr Smith which could reasonably have led Mr Khan to re-take possession on 15 April 2015 in reliance on an abandonment or discontinuation of the tenancy. Nor, as I have said, was that the basis or reason why Mr Khan in fact re-took possession. Judge Owen placed some emphasis on the fact that Mr Smith had departed for Scotland on 4 March and remained there up to and beyond the moment when Mr Khan served his notice on Mrs Smith and then re-took possession. The proximity of the end of the fixed term of the tenancy on 30 June meant, he said, that there could be no statutory continuation of the assured tenancy after that date. But mere absence is not enough in itself to indicate an intention to abandon the tenancy or for that matter to amount to a cesser of occupation for the purposes of the provisions of HA 1988. The judge suggests in [32] of his judgment that the necessary inference can be drawn from the fact that Mr Smith had established what he describes as permanent or ordinary residence in Scotland. But, as far as I can see, there was no real evidence about the kind of accommodation he occupied there or of his intentions in that regard. The fact that someone chooses or is forced to work away from home does not mean that his former place of residence has ceased to be his only or principal home.
  35. It follows that Judge Owen was wrong in my view to assess damages on the basis that the contractual term had come to an end by surrender as of 15 April 2015. The real issue therefore becomes one of period and quantum in relation to the assessment of damages. But as part of that exercise it will be necessary to consider what was the legal effect, if any, of the fact that Mrs Smith did not pursue her original claim to be re-instated to possession of the Property and Mr Smith has never, since his wife's eviction, sought to assert or enforce any rights which he might have as tenant against Mr Khan.
  36. Damages

  37. In her particulars of claim Mrs Smith sought damages for trespass; statutory damages for eviction under s.27 HA 1988; damages for trespass to goods and damages for harassment. She also sought and obtained awards of aggravated and exemplary damages. On this appeal we are concerned only with the award of general damages for trespass and, in particular, with the rate and period of the award.
  38. I propose to begin by considering the period for which Mrs Smith is entitled to damages.
  39. The claims for damages for trespass and for damages under s.27 HA 1988 were pursued in the alternative and it was made clear in counsel's written submissions at the trial that the s.27 claim would only be pursued in the event that general damages for trespass could not for some reason be awarded. In the event, the District Judge awarded Mrs Smith damages for trespass. Statutory damages under s.27 are restitutionary. They are designed to compensate the tenant for the loss of his tenancy but are calculated in a sum which represents the value acquired by the landlord in unlawfully removing the tenant so as to prevent unscrupulous landlords from profiting from their conduct: see s.28(1) HA 1988.
  40. Under s.27(5) HA 1988 there can be no double recovery and so it was accepted by Ms Cafferkey at the trial that Mrs Smith could not have obtained damages both under s.27 and also for breach of the implied covenant for quiet enjoyment under the lease. In part, this is the consequence of the rule that the displaced tenant cannot obtain both damages under s.27 and an order for his re-instatement. The making of such an order at any time up to and including trial and its subsequent enforcement has the effect of removing the landlord's liability for statutory damages assessed in accordance with s.27: see s.27(6). The tenant who is pursuing both a s.27 claim and a claim for re-instatement must therefore elect between the two remedies at trial and an election to accept damages would mean that his tenancy would be deemed to have come to an end when he was unlawfully evicted: see Osei-Bonsu v Wandsworth London Borough Council [1999] 1 WLR 1011 at page 1025 D-E.
  41. Damages for trespass are not restitutionary in the same way. They are payable to compensate the displaced tenant or anyone who has a right to possession of the property in question for the unlawful occupation of that property by the trespasser. They continue to be payable throughout the period during which the claimant's right to possession subsists and they are not therefore inconsistent with the pursuit in the same proceedings of a claim for an injunction to re-instate the tenant or rightful owner to possession of their property. If such an order is made then damages will be payable up to the date when possession is restored.
  42. If, however, the displaced tenant abandons the claim to be re-instated, more difficult issues arise as to the period during which damages continue to be payable. The argument about the period in respect of which damages are payable centred at trial and on the appeal to Judge Owen on what would have been the minimum period during which Mr Khan could, had he chosen to do so, have lawfully brought Mrs Smith's right of occupation to an end. Since this has always been parasitic, so to speak, on the continuation of her husband's tenancy, the focus was on how long it would have taken Mr Khan to obtain an order for possession in proceedings brought under either s.7 or s.21 HA 1988. On the premise that Mr Smith had surrendered his tenancy then it became necessary to consider the duration thereafter of Mrs Smith's right of occupation which depends on s.3 of the Protection from Eviction Act. Judge Owen again applied this on a hypothetical basis by asking himself when Mrs Smith should be assumed to have vacated the Property had Mr Khan brought a possession claim against her.
  43. Because a cause of action for damages for trespass continues for so long as the right to possession actually subsists, I query whether the calculation of the period based on the earliest point in time at which the landlord could have lawfully terminated the right of occupation is in fact correct. Given that Mr Khan could but did not seek to terminate Mr Smith's tenancy in accordance with the provisions of HA 1988, the question which the District Judge should have asked was how long did the tenancy and with it Mrs Smith's right of occupation in fact continue.
  44. Judge Owen in effect answered this question by finding that the tenancy had been surrendered with effect from 15 April 2015 when Mr Khan re-took possession. But for the reasons which I have already given, that conclusion was not, I think, open to him on the facts found by the District Judge. The position taken by Mr Smith and the history of what actually happened after 15 April cannot, however, be ignored.
  45. If there was no implied surrender on 15 April then the assured tenancy granted to Mr Smith continued for the remainder of its contractual term until 30 June 2015 giving Mr Smith and therefore Mrs Smith a continuing right to occupy the Property during that period. As explained earlier, Mr Khan could have terminated the tenancy by a 28 day notice in accordance with the tenancy agreement but did not do so After 30 June Mrs Smith's right to continue in occupation depended on whether there was a statutory continuation of the tenancy on a periodic basis under s.5(2) HA 1988. That in turn depends on the tenancy having remained an assured tenancy as of that date by continuing to be a dwellinghouse occupied by Mr Smith as his principal home. As of 30 June 2015 Mr Smith remained living and working in Scotland. The present proceedings were issued by Mrs Smith on 11 May but Mr Smith did not join in as a co-claimant nor has he attempted to challenge Mr Khan's eviction of his wife. Whatever may be the state of their relationship, he appears to have accepted the status quo.
  46. Mrs Smith obtained an order for her re-instatement on 18 May but did not seek to enforce it. It appears that Mr Khan took steps to re-let the Property on 14 May 2015 after he was served with the application for a re-instatement order. But the fact is that Mrs Smith accepted this state of affairs and continued with her claim only in respect of damages. She collected what remained of her belongings by the end of June. I accept Ms Cafferkey's submission which she also made to Judge Owen that the assured tenancy could not have come to an end after 30 June 2015 merely by reason of the fact that Mr Smith was no longer in physical occupation of the Property. So far as necessary, his absence could be made good by Mrs Smith's own occupation of the Property. Under s.30(4)(b) FLA 1996 this is treated for the purposes of HA 1988 as occupation by Mr Smith. But as of 30 June 2015 neither Mr Smith nor Mrs Smith were in physical occupation of the Property. Although Mrs Smith's unlawful exclusion cannot, I think, be relied on by Mr Khan as a cesser of occupation by Mrs Smith, the position was, I think, different once Mrs Smith had herself elected no longer to pursue her claim for re-instatement by enforcing the order which she obtained on 18 May. Certainly by 30 June she had collected her belongings and made no further attempt to retain possession of the Property. Mr Smith, as I have said, has never challenged his wife's eviction either in correspondence or by participating in the present proceedings.
  47. In these circumstances it seems to me unrealistic to regard Mr Smith's assured tenancy as having continued after 30 June. By then both Mr and Mrs Smith must have accepted that they would not regain possession of the Property and were not seeking to do so. The occupation of it as their principal home had therefore ceased. Since there was no contractual right under the tenancy agreement to a further lease and neither of them remained in possession paying rent, the tenancy came to an end at the expiry of the fixed term on 30 June 2015. Judge Owen made an allowance of 28 days to take account of Mrs Smith's rights under s.3 but that prohibits the landlord from enforcing his right to possession against a residential occupier as defined without a court order. Mr Khan was undoubtedly in breach of s.3 when he excluded Mrs Smith from the Property on 15 April but Mrs Smith made no claim and the District Judge was not asked to make any award on the basis of a breach of s.3 because the 1977 Act does not create a statutory cause of action. It merely confirms that Mrs Smith's removal was unlawful. The unlawfulness of that removal formed the basis of the claim for damages for trespass and is reflected in Mrs Smith's entitlement to damages up to the end of the contractual term on 30 June 2015. Since her right of occupation did not continue beyond that date and she had by then been out of possession since 15 April, I can see no basis for awarding damages for a further period after 30 June. After that date she had no right to occupy the Property for which damages can be awarded. In my view the District Judge was therefore wrong in awarding damages for the entire period up to December 2015. But I would allow the appeal against the period for which Judge Owen awarded damages by holding that Mrs Smith is entitled to general damages for trespass at an appropriate daily rate up to and including 30 June 2015.
  48. That leaves the question of the daily rate. The appeal by Mrs Smith to Judge Owen succeeded on the basis that the District Judge had been in error in basing the amount awarded on the contractual rent under the tenancy. She had rejected Ms Cafferkey's suggested figure of £220 per night as excessive compared with a daily rate of £9.86 under the tenancy and had used the current rent as a cross-check in accordance with the guidance given by this court in Wallace v Manchester City Council [1998] 30 HLR 1111 which concerned the award of damages for breach of a covenant of repair. In that case the court said that damages for breach of the duty to repair were intended to place a monetary value on the discomfort and inconvenience suffered by the tenant. It was helpful when making a global assessment to cross-check the award with the rent that the tenant was paying for his occupation of the premises during the period of the breach.
  49. But, in the case of unlawful eviction, damages for trespass must compensate the tenant not merely for the letting value of the property of which he has been deprived but also for the anxiety, inconvenience and mental stress involved in the loss of what was the tenant's home. A summary of recent County Court decisions indicate awards ranging between £100 and £300 per night. Judge Owen accepted that the District Judge had been wrong to place the reliance she did on the decision in Wallace and that although each case inevitably turns on its own facts, her award of £40 per night was considerably out of line with what might be called the current tariff for this kind of award. The judge held that the correct figure was £130 per night.
  50. Mr Adams submits that there was no proper basis for the judge interfering with the assessment carried out by the District Judge. But I think that he was entitled to set aside that award. In so far as it is explained by the District Judge in her judgment, it relies heavily on the passing rent and the allowance which it makes for other factors such as the inconvenience and anxiety caused to Mrs Smith is inadequate. Although the awards made in other cases cannot be treated as strict precedents and judges must feel free to base their awards on their own assessment of the damage which has been caused, they do indicate the value which has been placed by the courts in those cases on the additional factors I have mentioned. Judge Owen was entitled to take the view that the District Judge's award was simply too low. I am not persuaded that we should interfere with his own assessment of the daily rate.
  51. I would therefore dismiss Mr Khan's cross-appeal and, on Mrs Smith's appeal, set aside the order of 2 June 2016. I would order Mr Khan to pay damages for trespass from 15 April to 30 June 2015 inclusive at a rate of £130 per day amounting as I calculate it to £9,880. To this should be added a further £4,200 made up of the awards of aggravated and exemplary damages and the awards of damages for harassment and special damages which are not in issue on this appeal.
  52. Lord Justice Henderson :

  53. I agree.
  54. Lord Justice Newey :

  55. I agree also.
  56. Crown copyright©

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