22 June 2018, by Connor Johnston
Smith v Khan  EWCA Civ 1137, 17 May 2018
Mr Smith was the assured shorthold tenant of Mr Khan. The tenancy commenced in June 2014. It was for a fixed term of 12 months. The rent at the property was £300, payable monthly. Mr Smith lived there with his wife, the appellant, Mrs Smith, who was a Nigerian national who suffered from diabetes as well as other health problems.
In around March 2015 Mr Smith, who had fallen into arrears, left the property, with Mrs Smith still in residence. Mr Khan meanwhile, concerned about the level of the arrears and whether Mrs Smith could pay them, gave her a letter in which he purported to give her notice requiring her to leave the property. Mrs Smith duly sought advice from the local Housing Advice Centre who informed Mr Khan that the notice was invalid and that, although Mrs Smith was not the tenant, she had a legal right to occupy the property. Mr Khan was warned that he would need a court order if he wished to obtain possession.
On 15 April 2015, while Mrs Smith was out of the house, Mr Khan entered the property and changed the locks. Mrs Smith, who had leave in the UK subject to a condition that she should have no recourse to public funds was unable to obtain homelessness assistance from her local authority and ended up sleeping on the floor of a friend’s house, for a number of months.
Mrs Smith obtained advice from a solicitor who sent a letter before action to Mr Khan asking him to allow her to return to the property. He refused and legal proceedings were issued in which, on 18 May 2015, Mrs Smith obtained an order for re-instatement. It emerged subsequently that Mr Khan had re-let the property to another tenant and was either unwilling (or unable) to comply with the order. He did however return Mrs Smith’s belongings. These had been stored in 40 black bin liners in a damp basement, and most of them had been ruined.
The legal proceedings against Mr Khan continued and, following a trial, on 14 December 2015 the District Judge dealing with the claim handed down a judgment finding that there was no evidence that Mr Smith had intended to surrender the tenancy and that, by virtue of s30(4)(b) Family Law Act 1996, Mrs Smith’s occupation fell to be treated as occupation by her husband meaning that security of tenure had been retained throughout. As a result, the eviction of Mrs Smith was unlawful. She was awarded:
- General damages for trespass of £40 per night, with reference to the rent payable (£9.86 per day) but with an uplift to reflect ‘Mr Khan’s flagrant disregard of the law and the consequences which it had for Mrs Smith’;
- Aggravated damages for injury to feeling of £1,500
- Exemplary damages of £1,200
- Damages for harassment of £500
- Special damages of £1,000
The period over which the general damages were awarded ran from the date of eviction until the date of judgment on the basis that the tenancy was continuing or would have continued if Mr Khan had acted lawfully.
Mrs Smith appealed arguing that the general damages for trespass should have been calculated at a rate of £200 per day for the 243 days from the eviction until the order of 14 December 2015.
On appeal HHJ Robert Owen QC increased the award of general damages to £130 per day. In relation to the period over which damages should be awarded, the judge initially held – in an ex tempore judgment – that the period applied by the District Judge was correct. The parties were later informed by letter that he wished to recall this judgment as it ‘was plainly wrong to have awarded maximum damages for a period of 232 days.’ The correct period was said to be 76 days (from 15 April to 30 June 2015) which was the maximum period the tenancy could have continued if Mr Khan had taken steps to terminate it lawfully. On receipt of this letter Mrs Smith’s solicitors requested a hearing, following which, the judge changed his mind once more as to the correct period. This time, despite there having been no cross-appeal by Mr Khan taking the point, he decided that the tenancy had been impliedly surrendered by Mr Smith when he left the property in March 2015 and that Mr Khan has accepted this surrender, with effect from 15 April 2015. The judge proceeded to award damages for a 28-day period beginning on 15 April 2015, corresponding to the period of notice which, in his view, should have been given under the Protection of Eviction Act 1977. This resulted in a considerable reduction in Mrs Smith’s damages.
The Court of Appeal allowed a second appeal by Mrs Smith. Surrender by operation of law ‘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’. The findings of fact made by the District Judge at first instance did not support a conclusion that the tenancy had ever been surrendered by Mr Smith.
As to damages generally, the court noted at para 37 that damages for trespass:
‘…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.’
Further, at para 45, it was observed that:
‘…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.’
In terms of the period over which the damages should be awarded, the court took the view that ‘because a cause of action for damages for trespass continues for so long as the right to possession actually subsists’ the period should not be calculated by reference to the ‘period based on the earliest point in time at which the landlord could have lawfully terminated the right of occupation’. Rather it should be calculated with reference to how long the tenancy, and Mrs Smith’s right of occupation, actually continued.
On the particular facts of the case, the court felt it was unrealistic to regard Mr Smith’s tenancy as having continued after 30 June 2015. By this time, the fixed term had expired. Mrs Smith was not in occupation, and so was not exercising her rights under the Family Law Act 1996, and she had not sought to rely on the order for re-instatement she had obtained. In these circumstances, ‘both Mr and Mrs Smith must have accepted that they would not regain possession of the Property and were not seeking to do so’.
As to quantum, HHJ Robert Owen QC had been right to hold that the District Judge’s approach (which referred to the rental value of the property) had been wrong. The award that he had substituted of £130 per night should not be interfered with.