Assessing General Damages in Unlawful Eviction Cases

Smith v Khan [2018] EWCA Cave 1173, 17 May 2018

Mr Khan had granted a twelve-month assured shorthold tenancy to the Claimant’s husband in June 2014. In March 2015 the husband left the property and disappeared.

On 1 April 2015 Mr Khan handed Mrs Smith a letter purporting to terminate her tenancy. A law centre contacted Mr Khan pointing out that the notice was unenforceable because Mrs Smith had a legal right to occupy the property under s. 30 Family Law Act 1996. On 15 April 2015 Mr Khan entered her property and changed the lock. Mrs Smith ended up sleeping on the floor of a friend’s house for many months.

A district judge made an order for re-entry in mid May 2015, but it emerged the Mr Khan had re-let the property. Mrs Smith managed to retrieve her belongings, much damaged, at the end of June 2015. Her claim against Mr Khan proceeded as a damages claim.

At first instance, the judge awarded Mrs Smith general damages for trespass at £40 per night by reference to the rent payable – similar to disrepair cases – and for interference with her belongings in the amount of £9,280; aggravated damages (£1,500) for injury to feelings; exemplary damages (£1,200); damages for harassment (£500) and for loss of the property (£1,000). The award of damages for trespass covered the period from the eviction to the date for the hearing.

Mrs Khan appealed against the award of general damages, arguing that general damages should have been calculated at £200 per day.

The circuit judge awarded damages for trespass at £130 per day, but limited the period during which damages were due to 28 days from 15 April 2015 on the basis the Claimant’s husband had surrendered the tenancy and Mrs Smith’s ability to remain at the property would have been limited to 28 days by s. 3 Protection from Eviction Act 1977.

The appeal court, noting that there had not been a surrender, but that Mrs Smith had abandoned her claim to be re-instated to the property, held that she was entitled to damages until 30 June 2015 (the end of the contractual term) because on that date neither her husband nor Mrs Smith was in physical occupation of the property. Further, the court held that in unlawful eviction cases damages must compensate the tenant not only for the letting value of the property, but also for anxiety, inconvenience and mental stress. The circuit judge been correct to award £130 per day, making a total of £9,880 for general damages in addition to the other unchallenged heads of damages.

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