[2025] EWHC 1859 (KB)

The Applicant contends that the Judge failed to engage with Clause 11 and the right to quite enjoyment.

In the grounds, the Applicant complains of (a) flooding, (b) vermin, (c) without electricity in the rear area, (d) under inspection orders from local authorities, (e) constant damp and (f) denied drying and repairs to drainage delays. It is also said that the Respondents repeatedly breach this obligation by entering the commercial unity without notice accompanied by surveyors and contractors. In her written grounds, the Applicant identified that case law, including Southwark LBC v Mills [1999] UKHL, established that persistent environmental deterioration caused by landlord inaction can amount to a breach of a covenant of quiet enjoyment.

The Judge did engage substantively with the issues of flooding and vermin. Whilst it is correct that he did not consider the same matters in the context of Clause 11, given his factual findings that the Landlords were not responsible for any disrepair which had caused the flooding and/or vermin, he would not in the same breath have found these matters amounted to a breach caused by the Landlords’ inaction for the purposes of Clause 11. These are the only pleaded complaints in respect of quiet enjoyment. This is not therefore an arguable ground of appeal.

Although not pleaded as a breach of Clause 11, for completeness I note that disrepair by way of damp was also considered substantively, and the Judge found in the Applicant’s favour. This was, in substance, the cause of the Judge’s dismissal of the majority of the Respondent’s Counterclaim.

Under this ground, the Applicant also claims that reports from Smithers Purslow and Drainrod were not disclosed by the Respondents. Other reports, possession of which was originally denied by the Respondents, were produced. It is correct that the existence of these reports was referenced in correspondence between the Respondents and their insurers, and the Applicant’s belief that such reports would have existed at some point was plainly a reasonable one. However, it does not follow from this that the Respondents were in breach of their disclosure obligations in not producing the reports, if (as the Respondents said) they no longer existed/could be located. As the Judge said, this was unsatisfactory. However, this does not amount to an arguable ground of appeal. Moreover, it is not arguable that because the Judge considered the absence of the report to be unsatisfactory, it was incumbent upon the Judge to draw adverse inferences against the Respondents in respect of all or some issues of fact. As it happens, the Judge did in effect conclude that neither side’s oral evidence was credible in all respects, and this was a reason that he drew heavily on the contemporaneous documents, which he was plainly entitled to do.