[2025] EWHC 1859 (KB)

The Applicant alleges that the Judge misapplied legal principles regarding repairing obligations. Specifically, it is said that the Judge erred by applying a tortious causation test to a contractual claim for breach of repairing obligations. The Applicant states, on the basis of Edwards v Kumarasamy [2016] UKSC 40 that, the questions which ought to have been addressed are:

It is said that the effect of the Judge’s approach was to reverse the burden of proof.

There is no doubt that the Judge fell into error in referencing ‘and/or negligence’ as any part of the issues in the case at [60]. Negligence was not an issue.

However, the Judge did not ignore the fact that the claim was one brought under the agreement. Moreover, the inclusion of these words at [60] did not mean the Judge was wrong to focus, in substance, upon whether the Applicant had established, on the balance of probabilities, a state of disrepair which gave rise to obligations under the lease. The Judge specifically refers to this at [62]. Moreover, in considering this question, the Judge did not consider ‘disrepair’ in the abstract, but concentrated on whether the Applicant had established such disrepair as was said to be the cause of the Applicant’s loss and damage – namely disrepair causing flood and/or vermin infestation. To do so was not arguably an error on the part of the Judge. Focussing on the alleged disrepair capable of causing the claimed losses was correct.

It is not therefore correct, upon analysis, that the Judge reversed the burden of proof, or required the Applicant to establish negligence. Neither did he apply a test of causation referable to negligence. The lease did not impose ‘strict liability’ by which (as the Applicant’s submissions effectively assume) the ingress of water and/or vermin of itself proved the existence of a state of disrepair which the Landlords were responsible for.

Having considered correctly, as a matter of law, that the burden of proof to establish the relevant disrepair fell on the Applicant, the Judge found that no disrepair causative of the losses complained about (or, as he referred to it at times, ‘defect’ in the property), giving rise to a liability on the part of the Landlords, had been established as a matter of fact.

Whilst the Judge clearly accepted that there was some significant water ingress which had occurred by the date of the Respondents’ inspection in February 2020, he concluded that the Applicant had failed to establish that that was as a result of a matter for which the Respondents were responsible. Read fairly, this finding was entirely unrelated to or uninfluenced by a misapplication of the concept of ‘negligence’. It related to disrepair in the context of the lease obligations. The mere fact of water ingress did not demonstrate, of itself, that such disrepair as may have caused the water ingress was something which the Respondents had either known about or resulted from a failure to maintain the property. Indeed, it was common ground that the Respondents did not know about water ingress until mid-January 2020 at the earliest, some period after the first water ingress was reported (initially to the Applicant’s own insurers on the basis that water ingress had been caused by Network Rail’s works). By this point, the Applicant had already reported that her business had been ruined. This was a finding of fact that the Judge was entitled to come to on the evidence.

As to the infestation of vermin, the Judge concluded, on the evidence, that it was not possible to explain infestation with mice by reference to and disrepair in the condition of the Premises, whether caused by a failure to maintain or otherwise. This was on the basis that a pet store with food stuffs being stored would be an attractive prospect for a disturbed nest of rodents, and physically rodent-proofing premises of this sort would be impossible: mice will find a way into any property where food stuffs are readily available.

These were findings of fact which the Judge was entitled to come to on the evidence, and were not the result of reversing the burden of proof. There is no important issue of law at the heart of this case. The findings were made after a thorough review of all the contemporaneous views expressed by the various professionals and contractors to which he referred during the lengthy period of investigation. Although the Applicant, in her written and oral submissions, submitted that disrepair was proven via the contemporaneous expert reports and insurance emails, this is a partial submission. There were, to some extent, conflicting views expressed contemporaneously as to whether the flooding caused in 2019 or 2020 was one-off or as a result of systemic issues. Importantly, no view expressed contemporaneously blamed the flooding on a failure to have maintained part of the Premises. Moreover, none of the reports dealt with the causes of vermin infestation, which was the real problem the Applicant said she was facing and which caused the loss of her business. It was for the Judge to assess the evidence and the view he came to was not one no reasonable judge could have arrived at.

Ground 1 is not reasonably arguable.