In the case of Smith v Khan [2018] EWCA Civ 1137, Mr Smith took an assured shorthold tenancy In June 2014 for 12 months from Mr Khan (the Defendant). His wife, the Claimant, had leave to remain in the United Kingdom but no recourse to public funds.
On 4 March 2015 Mr Smith left the marital home as when his benefits had stopped he had accrued rent arrears. He had gone to look for work in Scotland.
On 1 April 2015 the Defendant purported to terminate the tenancy by handing the Claimant a letter. She took advice from a housing law centre, who told the Defendant that the notice was invalid, that the Claimant had the right to remain in the property pursuant to family law and that he should get a court order for possession.
On 15 April 2015, whilst the Claimant was out, the Defendant changed the locks. The Claimant subsequently spent many months sleeping on a friend's floor.
On 11 May 2015 the Claimant issued proceedings for an injunction for re-admission to the flat and for damages. When it emerged that the Defendant had re let the flat, the claim proceeded for damages alone. Much of the legal argument that followed centred on what period of time the Claimant could claim damages for and how these should be calculated.
A District Judge initially awarded £1,500 aggravated damages, £1,200 exemplary damages, £1,000 special damages and £9,280 general damages.
In relation to general damages, the Claimant argued that these should be calculated at a daily rate of £220 for 232 days (from the date of the eviction on 15 April 2015 to the date of the Order on 14 December 2015). The District Judge accepted the period of 232 days but awarded a daily rate of £40. In so doing, the District Judge relied on a principle used in disrepair cases where awards are based on a monetary value for discomfort and inconvenience being placed on a landlord's breach of repairing obligations.
The Claimant appealed to a Circuit Judge, who held that the appropriate daily rate was £130. Unusually, the Circuit Judge then recalled his Judgment and at a further hearing he held that the tenancy had been surrendered on 15 April 2015. He substituted an award of £3,640 based on a 28 day period.
The Claimant appealed to the Court of Appeal against a finding that the tenancy had been surrendered and the period for which damages should be awarded. The Defendant cross appealed for substitution of the daily rate. The Court of Appeal held that:
- the tenancy did not terminate on 15 April 2015; and
- the period for an award of general damages was from the date of eviction until the end of the term of the tenancy (i.e. 30 June 2015). The reasoning being that as the Claimant's husband, who was still living and working in Scotland and who had taken no part in the proceedings, must have accepted by this date that their occupation of the property as their only and principal home had ceased. The parallel drawn with the assessment of damages in disrepair cases was wrong; in unlawful eviction cases damages, must compensate the Claimant for anxiety, inconvenience and mental distress in losing their home.
The figure of £130 was therefore upheld. The Claimant was awarded general damages of £9,880.
This case is a useful reminder of how high damages awards in unlawful eviction cases can be and it should not be forgotten that occupation by a spouse under matrimonial law can constitute occupation by the tenant themselves.
