In Khan v Mehmood, the Court of Appeal has held that the 10% uplift provided for in Section 44(6) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, applied to damages for pain, suffering and loss of amenity flowing from a breach of a repairing covenant.
The Breach of Repairing Covenant
In the context of possession proceedings, Mehmood, who had been Ms Khan’s tenant, brought a counterclaim seeking damages for breach of an implied covenant to keep the property in a good state of repair. The property was in a poor state of repair; it was damp, the floors in the kitchen were unstable and the carpets were filthy and infested.
At first instance, the judge agreed that the repairing covenant had been breached and awarded damages. He also followed the principles set out in Simmons v Castle, in which the Court of Appeal established an uplift of 10% for all general damages awarded in personal injury, defamation and other torts which cause suffering, inconvenience or distress to individuals, and applied the uplift. This decision was upheld on the first appeal.
The landlord appealed, arguing, among other things, that the uplift should only apply to cases where damages are calculated with reference to a tariff.
The Appeal
The Court of Appeal disagreed, finding that there was no justifiable reason to treat damages flowing from a breach of repairing covenant differently. There was nothing in Simmons v Castle which suggested that it ought to be confined to cases where damages are assessed on a tariff basis. On the contrary, damages for breach of repairing covenant ‘fell squarely within the purpose of the uplift.’
The Court of Appeal’s finding is unsurprising and removes any doubt on the applicability of the 10% uplift to damages for disrepair. Landlords should therefore be mindful of the uplift when making offers of settlement and ensure that it is included in any offer. This should hopefully mean that more claims settle earlier without the need to resort to litigation, thus saving time and resources.
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If you have experienced a breach of repairing covenant and need support settling your property dispute, our expert solicitors are here to help. Get in touch with us today.
