Legal Disturbance
UK Cases
Drane v Evangelou
(Court of Appeal)
[1978] 1 W.L.R. 455; [1978] 2 All E.R. 437; 36 P. & C.R. 270; (1977) 246 E.G. 137
Lord Denning: “Monstrous behaviour” – that is how the judge described it. He said that it called for exemplary damages. He awarded £1,000. The defendant appeals. The first point taken on behalf of the defendants was a pleading point. The amended particulars of claim alleged that the landlord had
interfered with the right of the plaintiff and his de facto wife Ann Watts to quiet enjoyment of the said premises by unlawfully evicting them from the said premises on Tuesday October 14, 1975.
Counsel for the defendant submitted that that claim was for breach of a covenant for quiet enjoyment. He cited a passage from Woodfa/1 on Landlord and Tenant, 27th edn (1968), para. 1338: “Since the claim is in contract, punitive or exemplary dam ages cannot be awarded.” The judge at once said: “What about trespass? Does the claim not lie in trespass?” Counsel for the defendant urged that trespass was not pleaded. The judge then said: “The facts are alleged sufficiently so it does not matter what label you put upon it.” The judge was right. The plaintiff in the particulars of claim gave details saying that three men broke the door, removed the plaintiff’s belongings, bolted the door from the inside: and so forth. Those facts were clearly sufficient to warrant a claim for trespass. As we said in In re Vandervell’s Trusts (No. 2) [1974] Ch. 269, 321-322:
It is sufficient for the pleader to state material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit.
Another pleading point was not taken before the county court but was taken before us. It was said that the particulars of claim did not expressly claim exemplary damages and therefore they could not be awarded. In Broome v. Cassell & Co. Ltd [1971] 2 Q.B. 354, 378, we said that exemplary damages need not be pleaded expressly. Lord Hailsham in the House of Lords [1972) A.C. 1027, 1083F, said he was content to accept the view of the Court of Appeal but he thought the practice should be altered. As a result of his words, the High Court Rules have been amended. R.S.C., Ord. 18, r. 8 (3) says: “A claim for exemplary damages must be specifically pleaded together with the facts on which the party pleading relies.” Does that amendment apply to the county court? In my opinion it does not. The County Court Rules have not been amended. So it is not necessary in the county court to plead exemplary damages. The old practice still applies there, where exemplary damages can be awarded, even though not pleaded.
In any case this point was not raised in the county court. So it cannot be raised here. If it had been raised in the county court, I am quite sure it would have been met immediately by an amendment to claim exemplary damages.
The next point was one of substance. Mr Cousins, for the defendant, submitted that it was not open to the judge to award exemplary damages. He has taken us through Lord Devlin’s judgment in Rookes v. Barnard [1964] A.C. 1129, referring us especially to the passages from 1226-1230. He said that the general principle now adays is that in a civil action damages are awarded by way of compensation for damage actually done or for any aggravation by way of injured feelings of the plaintiff; but the court cannot in the ordinary way award punitive damages over and above that which is compensation: because punishment is the prerogative of the criminal courts and should have no place in the civil courts.
That exclusion of exemplary damages has not found favour in the other common law countries, such as Canada, Australia, New Zealand and the United States of America. But since Broome v. Cassell & Co. Ltd [1972] A.C. 1027 it must be accepted in England. Lord Devlin in Rookes v. Barnard[1964] 1129, 1226, acknowledged that there are some categories of tort in which exemplary damages may still be awarded. This case seems to me to come within the second category. Lord Devlin said, at p. 1227:
I
This category is not confined to mdneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at the expense of the plaintiff some object – perhaps some property which he covets – which either he could not obtain at all or not obtain except at a price greater than he wants to put down. Exemplary damages can properly be awarded whenever it is necessary to teachia wrongdoer that tort does not pay.
To my mind this category includes cases of unlawful eviction of a tenant. The landlord seeks to gain possession, at the expense of the tenant – so as to keep or get a rent higher than that awarded by the rent tribunal – or to get possession from a tenant who is protected by the Rent Acts. So he resorts to harassing tactics. Such conduct can be punished now by the criminal law. But it can also be punished by the civil law by an award of exemplary damages. In the recent case of McCall v. Abelesz [1976] Q.B. 585 it was held that the provisions of the Rent Act 1965 against harassment only created a criminal offence: but I said, at p. 594:
I see no need to give any new civil remedy fol’ harassment. As I understand it, the law already gives a perfectly good civil action for damages.
So in a case of this kind damages can be awarded not only by way of compensation but also by way of exemplary damages.
It was said that, in any event, the sum of £1,000 was far too high even as exemplary damages. It was suggested that this sum is out of scale altogether. In my opinion a sum awarded by way of exemplary damages is not to be weighed in nice scales. It is a question for the judge, having heard all the evidence, to award such sum as he thinks proper. As this case unfolded before us – the circumstances in which this young couple were forced out of the house, the in-laws being pushed in, the defendant or the in-laws not complying with the injunction and not leaving until there was an application to commit – it did seem to me a case in which, in Lord Devlin’s words, it was necessary “to teach the defendant a lesson.” The judge thought £1,000 was appropriate. No doubt he felt strongly about it. So would any jury or any judge. I do not think we should interfere with the sum of £1,000.
Owen v Gadd
(Court of Appeal)
[1956] 2 Q.B. 99; [1956] 2 All E.R. 28; [1956] 2 W.L.R. 945
Lord Evershed M.R.: I think there are in truth, as submitted, two distinct questions ina case of this kind: first, one of law, what is the meaning and effect, so far as rele vant, of the covenant, breach of which is alleged; and, second, on the facts, has the
plaintiff proved that he has brought himself within the scope of the covenant as properly construed?
I begin by referring briefly to the lease. It is a lease of a shop and I have referred to the necessary implications of .that word. It is also to be noted that the demise was fora purpose expressly defined, namely, the retail sale of particular articles. Prima facie, that being so, it would appear that the language of the covenant would suffice to cover any act on the lessors’ part which prevented the lessee from the enjoyment of the premises demised to him for the purposes for which they were so demised. But there is no doubt that covenants of this character have been the subject of many decisions, and the general conclusions to be drawn from them may from time to time give rise to difficulty. In Foa on The Law of Landlord and Tenant, 7th edn, p. 292, the
following proposition is stated under the heading “Substantial interference with enjoyment”:
The question whether the quiet enjoyment of the premises demised has been interrupted or not is in every case one of fact; and the covenant is broken although neither the title to the land nor the possession of the land may be otherwise affected, where the ordinary and
lawful enjoyment is substantially interfered with by the acts of the lessor or of those lawfully claiming under him.
The second sentence is in fact a citation of the language of Fry L.J. in this court in
Sanderson v. Berwick-upon-Tweed Corporation, the judgment of the Lord Justice being the judgment of the court.
As the first part of the passage which I have read (and it is taken from earlier editions of the same work which were written by the author himself) the first sentence, “The question whether the quiet enjoyment has been interrupted or not is in every case one of fact,” seems to me, upon the present appeal, to reduce the scope of the debate considerably; for, having looked at the evidence and looked particularly at the photographs, it seems to me impossible to say that the judge was not well justified in concluding, as he did, that the interference here, the interruption of the quiet enjoyment, was, as a fact, substantial even though it did not lasta very long time. That was, in all the circumstances of this particular case, the conclusion of fact at which the judge arrived; and Mr Chapman has not indeed pressed us much upon that aspect of the matter.
There remains, however, the question whether the nature of the obstruction or interruption is of a kind incapable of constituting a breach of the covenant. If the passage which I have read from the judgment of Fry L.J. is correct, then it undoubtedly upon the face of it suffices to justify the legal premise on which the judge proceeded; and it is right to mention that the language of Fry L.J. was expressly referred to with approval in Robinson v. Kilvert by Lindley L.J. But I think it may well be true also to say that some qualification should be placed upon the broad significance of the language of Fry L.J. for this reason, if for no other, that the language which he used was used in reference to the facts of the particular case then before the court. I am prepared to assume that the disturbance, the interruption, must at least be of what is called a direct and physical character. It was very early decided that an injunction granted at the suit of a superior landlord to prevent the carrying on of some business or the doing of some act by the sublessee cannot be treated as constituting a breach of covenant for quiet enjoyment; and there have been other cases where the matter complained of has been the emanation of fumes or the making of noises and other matters of a kind commonly forming the subject of actions of nuisance. But we are here concerned with something that is not only physical – the placing of scaffold poles, like hoardings, is certainly physical – but also direct; it was done at the direct requirement of the lessors. I take as correct the language of Parker J. in Browne v. Flower, where he said:
It appears to me that to constitute a breach of such a covenant there must be some physical interference with the enjoyment of the demised premises, and that a mere interference with the comfort of persons using the demised premises by the creation of a personal annoyance such as might arise from noise, invasion of privacy, or otherwise is not enough.
If that passage be taken, as I am content to assume that it is, as correct, then it certainly does not, as I think, disable in any sense the basis upon which the judge in the present case decided in the plaintiff’s favour.
It was said by Mr Chapman that we must further qualify the language of Fry L.J. and that there could be no breach of the covenant for quiet enjoyment unless there was what he called an actual physical irruption into or upon the premises demised on the part of the landlords or some persons authorized by them by their actually entering upon or invading the premises, or by, e.g., the irruption thereon of water emitted from the landlords’ premises elsewhere. In my judgment, that submission is not justified by the authorities. I do not think that there is any sufficient warrant for such a limitation upon the language of Fry L.J. Concluding, therefore, as I do, that in this case the judge was entitled to find as a fact that the interference was substantial and that there was no principle of law which disqualified him from concluding as he did, I think that this appeal must fail and should be dismissed.
Kenny v Preen
(Court of Appeal)
(1963] 1 Q.B. 499; (1962] 3 All E.R. 814; (1962] 3 W.L.R. 1233
Pearson L.J.: The implied covenant for quiet enjoyment is not an absolute covenant protectinga tenant against eviction or interference by anybody, but isa qualified covenant protecting the tenant against interference with the tenant’s quiet and peaceful possession and enjoyment of the premises by the landlord or persons claiming through or under the landlord. The basis of it is that the landlord, by letting the premises, confers on the ten.ant the right of possession during the term and impliedly promises not to interfere with the tenant’s exercise and use of the right of possession during the term. I think the word “enjoy” used in this connection isa translation of the Latin word “fruor” and refers to the exercise and use of the right and having the full benefit of it, rather than to deriving pleasure from it.
The nature of the implied covenant was explained in Budd-Scott v. Daniell, in judgments of a Divisional Court. Lord Alverstone C.J. said:
Apart from authority it would certainly seem, on principle and in common sense, that when one person agrees to give possession of his house for a time to another, that ought to carry with it an agreement that he, the landlord, and those claiming through him, will not dis possess the tenant during that lime. Therefore, unless there is some special meaning attached to the word ‘demise’, the good sense of the thing would seem to be that, upon an agreement to let,a covenant or contract was to be implied that the landlord and those claiming under him would not disturb the possession of the tenant. Unless driven to do so
by authority, I should hesitate a long time before drawing any distinction in that respect between the words ‘agree to let’ and ‘demise’.
The Lord Chief Justice said that, because reference had been made toa previous case- Baynes & Co. v. Lloyd & Sons – in which Kay L.J. had said that the implied
covenant was only to be implied if the word “demised” was used, and could not be implied if some other word was used.
Also in the same case, Budd-Scott v. Daniell, Channell J. said:
I must say that, speaking for myself, until I read this judgment of the Court of Appeal in Baynes & Co. v. Lloyd& Sons, I always had thought that from the mere fact of letting there was some agreement implied by the landlord that the tenant should not be disturbed, though there might bea question as to what that agreement was. As to this question also, however,
I should have thought that it had been now settled that the agreement was only against disturbance by the lessor and those claiming under him, and was limited to the duration of the lessor’s interest. If the undertaking is limited in that way, it would seem, as was pointed out by Cockburn C.J. in Hall v. City of London Brewery Co., to be nothing more than that which the act of letting into possession for a fixed period would itself in common sense import. Ifa man letsa house for a year, he most undoubtedly does undertake that he will not himself interfere with the possession of his tenant during that time, and it is only reasonable that his undertaking should be held to extend to those claiming under him
Reference may also be made to Markham v. Paget. Swinfen Eady J. read an
extract from Platt on Covenants, and the concluding words of the extract are these:
for, as against the party himself, the court will not consider the word lawful, nor drive the covenantee to an action of trespass, when, by the generally implied covenant in law, the vendor had engaged not to annul his own deed, either by a rightful or an illegal entry.
That is surely the same principle emerging there, that the landlord is not allowed to “annul his own deed” by interfering with the possession which he himself has conferred on the tenant.
I would decide on two grounds in favour of the tenant’s contention that there was, In this case, a breach of the covenant for quiet enjoyment. First, there was a deliber ate and persistent attempt by the landlord to drive the tenant out of her possession of the premises by persecution and intimidation, and intimidation included threats of physical eviction of the tenant and removal of her belongings. In my view that course of conduct by the landlord seriously interfered with the tenant’s proper freedom of action in exercising her right of possession, and tended to deprive her of the full benefit of it, and was an invasion of her rights as tenant to remain in possession undisturbed, and so would in itself constitute a breach of covenant, even if there were no direct physical interference with the tenant’s possession and enjoyment. No case of this kind has ever been considered by the courts before, and I do not think the dicta in the previous cases should be read as excluding a case of this kind where a landlord seeks, by a course of intimidation, to “annul his own deed,” to contradict his own demise, by ousting the tenant from the possession which the landlord has conferred upon her.
Secondly, if direct physical interference is a necessary element in the breach of
covenant that element can be found in this case to a substantial extent, as I have already stated.
Harmer v Jumbil
[1921] 1 Ch. 200; [1920] All E.R. 113; 90 L.J. Ch. 140
Younger L.J.: The question here is how far the original lessor was, or how far the defendants as now claiming under him are, bound to restrict the user of their adjoining land so as not to render illegal the only enjoyment of the demised premises which the lessee under his lease is entitled to have. Or, putting the question in another way, was the lessor, or are the defendants, as now claiming under him, entitled to use their adjoining lands in such a way as that for the convenience of such user and for the protection of their own premises the only authorized user of the demised premises by the lessee will become a statutory offence.
Now if these questions are to be answered in a sense favourable to the lessee, it must be on the principle that a grantor shall not derogate from his grant,a principle which merely embodies in a legal maxim a rule of common honesty. “A grantor having givena thing with one hand,” as Bowen L.J. put it in Birmingham, Dudley and District Banking Co. v. Ross, “is not to take away the means of enjoying it with the other.” “If A. letsa plot of land to B.,” as Lord Loreburn phrases it in Lyttelton Times Co. v. Warners, “he may not act so as to frustrate the purpose for which in the contemplation of both parties the land was hired.” The rule is clear but the difficulty is, as always, in its application. For the obligation laid upon the grantor is not unqualified. If it were, that which was imposed in the interest of fair dealing might, in unscrupulous hands, become a justification for oppression, or an instrument of extortion. The obligation therefore must in every case be construed fairly, even strictly, if not narrowly. It must be such as, in view of the surrounding circumstances, was within the reasonable contemplation of the parties at the time when the transaction was entered into, and w;ts at that time within the grantor’s power to fulfil.
But so limited, the obligation imposed may, I think, be infinitely varied in kind, regard being had to the paramount purpose to serve which it is imposed. If, for instance, the purpose of a grant would in a particular case be frustrated by some art of the lessor on his own land which,” while involving no physical interference with the enjoyment of the demised property, would yet be completely effective to stop or render unlawful its continued user for the purpose for which alone it was let,I can see no reason at all in principle why “ut res magis valeat quam pereat” that act should not be prohibited, just as clearly as an act which, though less completely effective in its result, achieved it by some physical interference. There can, in my judgment, be no valid principle in the contention which was addressed to us in this case … that, while the lease of 1911 carried with it the obligation of doing or permitting nothing on the adjoining land which would make the explosives magazine less fit for use asa magazine, that is to say, more likely to blow up, it did leave the lessor perfectly free to use his land for his own convenience in any way he chose, even although the result of his doing so would ipso facto make the continued user of
a powder magazine as such a statutory offence. If that contention were to be accepted it would enable this grantor, if so minded, in pure caprice, to defeat the whole purpose of the grant and completely sterilize the property in his tenant’s hands, he himself remaining entitled to the rent reserved for the whole term.
In my judgment the principle here applicable is far too great to be in effect destroyed, in the case of such a property as this, by introducing this distinction which, so far asI can see, has no sound foundation on which to rest.
Browne v Flower
[1911] 1 Ch. 219; 80 L.J. Ch. 181; 103 L.T. 557
Parker J.: Under certain circumstances there will be implied on the part of the grantor or lessor obligations which restrict the user of the land retained by him further than can be explained by the implication of any easement known to the law. Thus, if the grant or demise be made for a particular purpose, the grantor or lessor comes under an obligation not to use the land retained by him in such a way as to render the land granted or demised unfit or materially less fit for the particular purpose for which the grant or demise was made. In Aldin v. Latimer Clark, Muirhead & Co., land having been demised for the purpose of carrying on the business of a timber merchant, the lessor came under an obligation not to build on land retained by him so as to interrupt the access of air to sheds on the demised property used for drying timber, although the law does not recognize any easement of air unless it comes through or to some defined passage or aperture. Similarly in the case of Grosvenor Hotel Co. v. Hamilton the lessee was held entitled to prevent the lessor from using property retained by him in such a way as to cause on the demised property vibrations which did not amount to a legal nuisance, though there is no such ease ment known to the law as an easement of freedom from vibration any more than there is an easement of freedom from noise. Once again, though possibly there may not be known to the law any easement of light for special purposes, still the lease of a building to be used for a special purpose requiring an extraordinary amount of light might well be held to preclude the grantor from diminishing the light passing to the grantee’s windows, even in cases where the diminution would not be such as to create a nuisance within the meaning of the recent decisions: see Herz v. Union Bank of London. In none of these cases would any easement be created, but the obligation implied on the part of the lessor or grantor would be analogous to that which arises from a restrictive covenant. It is to be observed that in the several cases to which I have referred the lessor had done or proposed to do something which rendered or would render the demised premises unfit or materially less fit to be used for the particular purpose for which the demise was made. I can find no case which extends the implied obligations of a grantor or lessor beyond this. Indeed, if the implied obligations of a grantor or lessor with regard to land retained by him were extended beyond this, it is difficult to see how they could be limited at all. A landowner may sell a piece of land for the purpose of building a house which when built may derive a great part of its value from advantages of prospect or privacy. It would, I think, be impossible to hold that because of this the vendor was precluded from laying out the land retained by him as a building estate, though in so doing he might destroy the views from the purchaser’s house, interfere with his privacy, render the premises noisy, and to a great extent interfere with the comfortable enjoyment and diminish the value of the property sold by him. It is quite reasonable for a purchaser to assume that a vendor who sells land for a particular purpose will not do anything to prevent its being used for that purpose, but it would be utterly unreasonable to assume that the vendor was undertaking restrictive obligations which would prevent his using land retained by him for any lawful purpose whatsoever merely because his so doing might affect the amenities of the property he had sold. After all, a purchaser can always bargain for those rights which he deems indispensable to his comfort.
Under these circumstances the question is whether the existence of this staircase renders the plaintiffs’ premises unfit or materially less fit to be used for the purposes for which they were demised, that is, for the purposes of a residential flat. In my opinion it does not. The two rooms in question can be and are still in fact used for the same purpose for which they were used prior to the erection of the staircase. It is only the comfort of the persons so using the rooms that is interfered with by what has been done. Either they have less privacy, or if they secure their privacy by curtains they have less light. Much as I sympathize with the plaintiffs, it would, in my opinion, be extending the implications based on the maxim that no one can derogate from his own grant to an unreasonable extent if it were held that what has been done in this case was a breach of an implied obligation.
Robinson v Kilvert
(1889) 41 Ch 88
Lopes L.J.:I think the Plaintiff cannot complain of what is being done asa nuisance. A man who carries on an exceptionally delicate trade cannot complain because it is Injured by his neighbour doing something lawful on his property, it it is something which would not injure anything but an exceptionally delicate trade. Cooke v. Forbes has been disposed of by Lord Justice Lindley. In the present case the Defendants are not shewn to have done anything which would injure an ordinary trade, and cannot, In my opinion, be held liable on the ground of nuisance. Then as to the contention that the Defendants have broken an implied agreement not to do anything which will make the property unfit tor the purpose tor which it was let, we must look to what the Defendants at the time of letting knew as to the purpose tor which the demised property was to be used. They knew that it was to be used fora paper warehouse, but they did not know that it was to be used for the storage ofa kind of paper which would be damaged if the temperature were raised beyond the natural temperature of the air. It the goods to be stored wanted that special protection the Plaintiff should
have bargained tor it.I agree, therefore, that the appeal must be dismissed.