No joy for Joy: unlawful eviction, re-letting and damages in the Court of Appeal

The Court of Appeal has provided some useful (and dare I venture to say, some not so useful) guidance on damages for unlawful eviction.

Joy Smith v Mohammed Riaz Khan [2018] EWCA Civ 1137

The Facts

In July 2014, the Claimant’s husband was granted an assured shorthold tenancy (“the tenancy”) of a flat in Nottingham. The rent was £300 a month and the term expired on 30 June 2015. Initially, the Claimant and her husband both lived at the property. The husband left in March 2015 and it wasn’t clear whether he was coming back. On 1 April 2015, the landlord served an invalid notice to terminate the tenancy and then on 15 April 2015 changed the locks, unlawfully evicting the Claimant. The Claimant spent months sleeping on the floor at a friend’s house.

The proceedings

In May 2015, the Claimant issued a claim for an injunction for reinstatement. The landlord re-let the property despite having received an ex-parte reinstatement order, then went on to mislead the court on the return hearing that the property was empty. Tut tut. The Claimant didn’t enforce the injunction because the property was occupied and she would have needed to bring possession proceedings against the new tenant.

In October 2015, a district judge heard a claim for damages by the Claimant. The DJ found that the husband had not surrendered the tenancy by leaving and the Claimant was entitled to be there pursuant to s30 Family Law Act 1996 (“s30 FLA”). The daily rate for general damages was assessed at £40 per day because of the need to cross-check the daily rate for unlawful eviction against the contractual rent, applying the principle laid down in Wallace v Manchester [1988] 30 HLR 1111, in relation to disrepair.

In May 2016, a circuit judge heard the Claimant’s appeal against the £40 daily rate awarded for general damages. The CJ held that a more appropriate figure was £130 per day. However, after some kerfuffle of a recalled judgment and second hearing, the CJ held that the general damages should only be awarded for 28 days from the date of eviction. That was because, apparently, the Claimant’s security only came from s 3 Protection from Eviction Act 1977. Not surprisingly, that perplexing outcome was appealed.

In February 2018, the matter came before the Court of Appeal. There were three things for the court to consider:

1. Had the tenancy been surrendered?
2. For how long should general damages be payable?
3. What should the daily rate for general damages be?

In May 2018, judgment was handed down.

The decision

On issue 1 there was no surrender by the husband.

On issue 2 damages should be awarded until the end of the term (30 June 2015).

On issue 3 a daily rate of £130 per day for general damages was more appropriate than £40 and in line with the general awards in the County Court of £100-300 a night.

The most interesting point in the case is about the end date for general damage under issue 2.

An analysis of the issue of damages

In deciding that damages should only be awarded until the end of the contractual term, the court analysed the case in the following way. Given there was no surrender by the husband and no valid notice served by the landlord, the Claimant was entitled to occupy the property until the end of the term by virtue of s30 FLA (and therefore get damages until at least then). After that, her occupation (and damages claim) depended on whether the husband still had a tenancy (s30(8)(b) FLA) which she could piggyback on to. If he continued to occupy as his only or principle home at the end of the tenancy, a periodic assured tenancy would have arisen by operation of s5 Housing Act 1988 (“HA”). The husband could, however, be held to be occupying the property as his only or principle home by virtue of his wife’s occupation (s30(4)(b) FLA), so although he didn’t physically occupy at the end of the tenancy, a periodic tenancy could have arisen if the wife did (and presumably would have needed to be lawfully terminated, which it was not). Additionally, the landlord could not rely on the unlawful eviction of the Claimant to prevent the husband’s tenancy becoming periodic.

Having regard to all of that the CA held that the Claimant’s damages would stop at the end of the tenancy because neither the husband nor the Claimant were in occupation at the end of the tenancy and fundamentally, there was no real expectation by them to regain possession. Thereby, no periodic tenancy was created and there was no entitlement for the Claimant to be there past June 2015. So damages come to an end at that point.

What troubles me with the CA’s analysis is that the landlord benefits financially from the unlawful eviction, subsequent re-let and misleading the court: not only is the property re-let and rent is coming in but fundamentally, the daily rate payable to the Claimant stops much earlier than if he had to go through the proper lawful process. Although an injunction was obtained which allowed the Claimant back in, she couldn’t really enforce it as there was another tenant living at the property. (See Love & Lugg v Herrity (1991) 23 HLR 217 regarding the difficulty in enforcing injunctions for reinstatement where premises have been re-let). Even though she had the order for reinstatement, that was obtained in circumstances where the landlord had misled the court – seemingly without consequence – that the property wasn’t occupied. Yet because she wasn’t back in possession her damages claim ended at the end of the tenancy, rather than on the date the landlord could have lawfully evicted her (which in most cases will be a much later date and after possession proceedings).

So, he misled the court, she got a semi-defunct injunction, yet, because she didn’t enforce it her damages claim is stopped in its tracks. It doesn’t seem right. Of course, advisers will now need to think very carefully about these urgent injunctions, the reality of enforcing them and the effect on the claim for damages.

One cannot help but wonder whether the Supreme Court will be considering this case in the future.

Other Learning lessons

• Damages for trespass:
  • Continue so long as the tenant has a right to possession. In this case, what was relevant was how long the tenancy actually continued for, not when it might have ended if a landlord had lawfully terminated it;
  • Would therefore stop on the date the tenant goes back into possession, if that happens;
  • Are to compensate the tenant for the stress and trauma experienced as a consequence of the eviction, they are not simply restitutionary.

• There is no set daily rate tariff for illegal eviction, however a rate in the region of £100-300 per night is common and those figures were not criticised by the CA.
• The principle of cross checking the damages against the rent was wrong. The point of an award of damages for unlawful eviction was not simply to compensate for the rent but it was to ensure a tenant who had had suffered “anxiety, inconvenience and mental stress” [45] at the loss of her home was adequately compensated.
• We are reminded that we can plead and pursue damages under s27 HA and damages for trespass in the alternative, then elect to seek only one at trial.
  • The CA provided some comments on s27 HA damages:
  • Those damages are restitutionary, designed to compensate the tenant for loss of the tenancy but they are calculated in a way which represents the value acquired by the landlord in unlawfully evicting the tenant.
  • It held that “…the displaced tenant cannot obtain both damages under s27 and an order for his re-instatement” [36] (emphasis added). I would query whether it is right that these damages fail to be applicable once an order for reinstatement is in place. The statute says that you can’t get the damages if “…the former residential occupier is reinstated…” (s27(6) HA). Doesn’t the latter mean that actual reinstatement is required for s27 damages to subsist? The CA does go on to talk about “the making of such an order…and its subsequent enforcement” [36] so let’s hope the lower courts take a pragmatic view and accept that it is the enforcement of the order which prohibits s 27 damages, not a mere order.
• We are reminded that a surrender of a tenancy requires unequivocal conduct or a specific representation. In many cases leaving the property is not enough. The court must look at “all the relevant background evidence” [30] when deciding whether a surrender took place.
• On different facts, such as the actual contractual tenant being unlawfully evicted, there is still an argument that damages should not only run to the end of the contractual tenancy, but also go on to run until that tenant could have lawfully been evicted. Assuming they would challenge the eviction, that date could be after a claim for possession following the receipt of valid notice.
• Property lawyers shouldn’t forget about the helpful provisions of s30 FLA, essentially giving non-tenants a right to be in a property. Further, it is helpful to remember that s30 FLA also provides that an absent tenant can occupy the property through their spouse.
• Don’t underestimate how long it takes to appeal. The Claimant was evicted in April 2015 and did not receive judgment from the CA until May 2018.
• Remember how unpredictable appealing can be. In this case the Claimant came away after the first hearing with damages of £14,773.37, then after two and a half years of heartache and court cases, with damages of £14,080.00 despite her daily rate being upped from £40 to £130. Ouch.

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