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An uplifting judgment

The Court of Appeal has held that general damages for breach of a repairing covenant are subject to the Simmons v. Castle 10% uplift, writes Toby Vanhegan.

Zahor Khan -v- Tariq Mehmood [2022] EWCA Civ 791

The respondent moved into the property in about March 2005. He was not granted a tenancy until March 2011. There was disrepair. In July 2013 the appellant brought possession proceedings. The respondent counterclaimed for disrepair. The trial was listed for 14 August 2014. The appellant did not attend.

The District Judge decided that the respondent had become a tenant in March 2007, and awarded damages from May 2007 to allow for two months as a reasonable period for the appellant to have carried out the repairs. Damages were awarded at 50% of the rent, and the Judge applied the Simmons v. Castle 10% uplift. 

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The appellant appealed on numerous grounds including challenging the duration of the damages award and the application of the 10% uplift. The Circuit Judge dismissed the appeal.   

The appellant appealed to the Court of Appeal. The Court granted permission on the Simmons v. Castle point, and on the duration of the damages award. The Housing Law Practitioners' Association intervened on the Simmons v. Castle issue, to argue that the uplift did apply and was necessary to pay for CFAs which were largely used to finance disrepair claims.

On ground 1, the Court held that the respondent was entitled to general damages equivalent to 50% of the rent from 23 March 2011 when he became the tenant.

On ground 2, the Court held that general damages for disrepair are to compensate for loss of amenity, of which discomfort, inconvenience and distress are symptoms. CFAs play an important role in assisting tenants to bring claims for breach of repairing covenants.

Accordingly, such disrepair claims are manifestly within the category of cases for which the 10% uplift was specifically intended, by way of compensation for the success fee which the claimant tenant's lawyer is entitled to be paid by his client but which, following LASPO, cannot be recovered from the defendant landlord. The need to secure funding for claims in the post LASPO environment was integral to the recommendations in the Jackson Report and the declaration made in Simmons v. Castle by the Court of Appeal.

Accordingly, the Court unanimously held that the 10% Simmons v. Castle uplift applied to general damages for breach of a repairing covenant. Baker LJ gave the leading judgment, and LJJ Phillips and Edis agreed. 

Read the judgment here.

Toby Vanhegan is a barrister at 4-5 Gray's Inn Square and appeared for the respondent tenant, instructed by Duncan Lewis Solicitors.

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