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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Brennan v Burdon & Ors [2003] EWHC 2493 (QB) (30 October 2003) URL: http://www.bailii.org/ew/cases/EWHC/QB/2003/2493.html Cite as: [2004] WLR 1240, [2003] EWHC 2493 (QB), [2004] 1 WLR 1240 |
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QUEENS BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| Margaret Brennan |
Claimant/Respondent |
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| - and - |
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| Bolt Burdon (1) London Borough of Islington (2) Leigh Day & Co (3) |
2nd Defendants/Appellant |
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Mr John Norman (instructed by Barlow Lyde & Gilbert) for the 2nd Defendants/Appellant
Hearing dates : 21st October 2003
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Crown Copyright ©
Mr Justice Morland : Judgment.
"With regard to the problems of skin & eye irritation, breathing difficulties and extreme fatigue and drowsiness which I've been experiencing in my flat, and further to the inspection visit by your Mr J Dixie & an Engineer from the Gas Section of Islington Council on 26th July – who done nothing but look at the cupboard in which the air vent is situated, the location of the boiler, and the silverware which I'd kept in that cupboard & which has become completely blackened by a soot-like substance – and, based on these observations, decided that the air-vent should be sealed up on the outside because the fumes from the boiler were coming straight back into the kitchen (an enclosed area off the sitting-room), I confirm that this air-vent was sealed up from the outside on the afternoon of 12 August.
However, I now understand that if the wall in the kitchen where the boiler & air-vent are situated, is a cavity wall and the problem might not be resolved. Indeed it would be worsened if the fumes from the boiler flue are seeping into the cavity & into the kitchen through the inner vent."
"RE: AIR QUALITY INVESTIGATION.
I am writing to inform you of the results of the above investigation. Firstly, because of the siting(sic) of the airbrick in you kitchen, the tarnished state of the silverware in your kitchen cupboard and the sulphurous smell inside it, it seems highly likely that fumes from the boiler flue have been re-circulating. The analysis result on black dust samples taken from the cupboard and airbrick revealed a low pH (acid) and sulphurous odour )there was not enough dust to analyse properly). In addition "Gastec" tube sampling on 6th August 1991 indicated the presence of a very small amount of hydrogen disulphide gas, which could easily have originated from boiler fumes. The recent blocking of your kitchen airbrick by Gas Detection should therefore eliminate this source of contamination.
Tests were also carried out using the "Gastec" apparatus in your kitchen cupboard for carbon monoxide and hydrocarbons, and at the kitchen window for ozone. None of these tests showed any presence of these gasses."
"I am writing to support Miss Brennan's request that she be considered for suitable re-housing. Since moving to her present accommodation some four years ago she has never felt well and has been troubled by continuing irritation of her eyes and nose, associated with dryness of the skin, drowsiness and loss of memory.
These complaints first occurred not long after an operation on her nose but we have not been able to associate the present symptoms with that illness or to find any alternative medical diagnosis, apart from the possibility that she has been, and to some extent still is, affected by fumes in her flat.
I understand that there was a problem with a faulty gas central heating system which would have given exposure to carbon monoxide and although this has now been corrected it could be related to some of her continuing problems notably the loss of memory. This however does not seem to explain the whole problem and on-site inspections by both the Environmental Health Department and staff from my department recorded the noted and irritant atmosphere. Investigations have been inconclusive but we did study some heavily tarnished silverware which proved to have a coating of silver sulphide presumably from exposure to hydrogen sulphide gas. We also considered the possibility of formaldehyde vapour release from cavity wall insulation but were unable to confirm whether or not such building treatment had been used.
On balance the most striking thing is that Mrs. Brennan's symptoms are relieved when she is able to move away from the flat and stay with friends. Thus whilst we cannot prove conclusively the cause for her symptoms I believe that there is enough evidence to justify making a special effort to re-house her in alternative accommodation."
"In our opinion noxious flue gas, produced by the combustion of Natural Gas in the boiler, has been entering the premises.
The incorrect positioning of the Balanced Flue Terminal, in a recess of the building, and less than 600mm from a re entrant corner of the building has resulted in an inability of the discharge flue gas to be effectively discharged and diluted by surrounding external air.
As a result the loss of room seal, due to poor or inadequate Maintenance to rectify a missing "butterfly nut" and defective sealing strip to serve the casing, this air and wind pressure has been able to force noxious flue gas into the kitchen and lounge.
Such combination of defects cannot other than have resulted in the "Occupier" being exposed to considerable volumes of noxious flue gas."
"As Mr Ramsden has stated, there may well be a claim for continuing loss but the chances of success in such an action are less than 50%. This would not be sufficient to satisfy the Legal Aid Board.
I confirm that Mr. Ramsden had not had sight of Mr. Shannon's report prior to producing his advice, as his advice was required as a matter of urgency. I do not think it likely that Mr. Ramsden's advice would have changed in the light of Mr. Shannon's report"
"Conclusion and Recommendations.
Repair.
The property has had no heating or hot water since the gas central heating boiler was considered unsafe and switched off under the Gas Safety (Installation and Use) Regulations 1994. I consider the flat to be unfit because of the lack of piped hot water supply to the bath, wash hand basin and kitchen sink.
In order to bring the property up to a reasonable standard the following work should be carried out.
1. The central heating boiler should be repaired or renewed tested and left safe for use by a suitably qualified engineer.
2. Repair to the kitchen window and bathroom plaster work should be carried out.
In my opinion.
The dwelling is unfit for human habitation having regard to sec 604 of the Housing Act 1985 in respect of a lack of hot water system to the kitchen and bathroom.
The landlord is failing in the repairing obligations implied into the tenancy by Sec 11 of the Landlord and Tenant Act 1985.
The Landlord is failing in the duty of care imposed by Sec 4 of the Defective Premises Act 1972"
"The "Landlord" their servant(s) or agent(s) have failed to rectify the serious and dangerous defects with the boiler and it's installation since our previous investigation on 15th November 1995.
They have also failed, as far as we are aware from evidence currently at our disposal, to carry out responsible annual servicing in accordance with their statutory duty in accordance with the Gas Safety (Installation & Use) Regulations 1994 Clause 35 (3) (a & b) which would be expected to identify defects. (Appendix 1a & 1b)"
"This assessment is aimed at determining whether neuropsychological impairments are consistent with carbon monoxide poisoning. It is known that such poisoning causes impairments in relation to attention, memory and executive functioning and her profile clearly fits this description.
In conclusion, her current neuro-psychological symptoms are consistent with carbon monoxide poisoning and also the level of functional disability that has occurred in the last decade. This has resulted in her being unable to work and clearly she now presents as somebody who is incapable of the skilled secretarial work which she conducted in her career up to the late 1980s. Given the time since the period of poisoning there are unlikely to be changes in brain functioning, and any gains to be made are through adapting to her disabilities which I believe she has done to some extent spontaneously through her own efforts. She may, however benefit from specialist neurorehabilitation aimed at improving memory and organisational skills."
"[1] Rule 6.7. of the CPR was badly drafted and that Mr Justice McCombe had incorrectly construed the rule in Anderton .v. Clywd County Council [2001] EWHC QB161 (25 July 2001)
[2] Lord Justice May's comments in Godwin .v. Swindon Borough Council [2001] All ER 641 would make it extremely difficult to get permission to appeal. Lord Justice May was regarded as the "Guru" of the CPR and there would be a small chance of getting two Court of Appeal Judges to go against him."
"The first thing I have to decide is whether or not there was a fundamental assumption behind the contract, because if there is not any fundamental assumption behind the contract, then the whole of this argument does not get off the ground at all. Having heard the arguments and looked at the witness statements of both Mr Cohen and Mr Scarles, I am satisfied that there was a fundamental assumption behind the contract, common to both Mr Cohen and to Mr Scarles, and that that assumption was namely that the service of the first action against Islington was bad. And that because of that it was doomed to failure. I am satisfied that this was in both of their minds when assessing the consequences to their respective parties of the decision of the Recorder, and that it was behind the agreement that both entered into.
Further, going back to the passage I cited in Chitty at paragraphs 5.013 and 5.014, particularly 5.013, this was in effect a condition precedent to the contract. There may have been a multiplicity of forces acting on both of these solicitors' minds at the time of reaching the agreement as Mr Norman has effectively said to me, and there may have been a number of other assumptions floating around, but I am satisfied that this was a fundamental assumption common to both of them."
"On 13 February 2002, at Croyden County Court, I met Mr Cohen who was representing LB1 on an application in connection with the claimant's second claim CR106704. Prior to the application, in the presence of Mr Davies, I spoke to Mr Cohen who commented on the learned Recorder's judgment and asked if, in the circumstances, I would be willing to discontinue the first claim, I said that I was provided that it was agreed that there would be no order for costs save for a detailed assessment of the claimant's costs. However, I only agreed to this because of the learned Recorder's decision. LB1 was the alleged primary wrongdoer and the questions of their liability had been investigated for over 10 years. It was clear to me that in view of the learned Recorder's judgment, the claimant had no option but to discontinue the claim. If I had not agreed to Mr Cohen's suggestion, I had no doubt that, as I have already explained, LB1 would have been able to strike out the claim and obtain an order for costs. As the claimant was legally aided, I had a duty to the Legal Services Commission and I could not allow costs to be incurred unnecessarily. My conversation with Mr Cohen about discontinuance lasted no more than a few minutes.
After the hearing, I received a letter from Mr Cohen in which he wrote that:
"Further to our meeting at court this morning, I understand that you wish to give notice of discontinuance of the first action against the Council and I consent to this on the basis that there will be no order for costs"
On 18th February 2002, I sent Mr Cohen a draft consent order. On 21 February 2002, I received a signed consent order from him. On 25th February 2002 I sent this to the court but, by an oversight I omitted to sign it. As a result, it was returned unsealed because the court refused to sign it.
On 12 March 2002, I received an e-mail from Mr Thompson of St James Church Legal Advice Centre informing me that the claimant did not agree to discontinue against LB1
ASB Law ceased to act for the claimant on 10 April 2002."
"nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud, but upon any grounds which invalidate the agreement it expresses in a more formal way than usual."
"I should consider whether parties in the position of the appellant bank were mistaken when they paid money to local authorities under interest swap agreements which they, like others, understood to be valid but have later been held to be void. To me, it is plain that the money was indeed paid over under a mistake, the mistake being a mistake of law. The payer believed, when he paid the money, that he was bound in law to pay it. He is now told that, on the law as held to be applicable at the date of the payment, he was not bound to pay it. Plainly, therefore, he paid the money under a mistake of law, and accordingly subject to any applicable defences, he is entitled to recover it."
"In the result, I would answer the questions posed for your Lordships under the various issues as follows.
Issue (1) The present rule, under which in general money is not recoverable in restitution on the ground that it has been paid under a mistake of law, should no longer be maintained as part of English law, from which it follows that the facts pleaded by the bank in each action disclose a cause of action in mistake
Issue 1(A) There is no principle of English law that payments made under a settled understanding of the law which is subsequently departed from by judicial decision shall not be recoverable in restitution on the ground of mistake of law."
"At the end of the argument I was of opinion, perhaps not in a very focused way, that a person who pays in accordance with what was then a settled view of the law has not made a mistake. In fact it seemed to me that one could go further and say that if he had acted in accordance with a tenable view of the law he had not made a mistake. In fact it seemed to me that one could go further and say that if he had acted in accordance with a tenable view of the law, he had not made a mistake. In the first case he was right, and in the second neither right nor wrong, but in both cases his state of mind could be better described as a failure to predict the outcome of some future event (scilicet, a decision of this House) than a mistake about the existing state of the law".
On reflection, however, I have come to the conclusion that this theory was wrong, both in its stronger ("tenable view") and in its weaker ("settled view") form. The reason, I think, is that it looks at the question of what counts as a mistake in too abstract a way, divorced from its setting in the law of unjust enrichment.
The problem arises because (1) the law requires that a mistake would have been as to some existing fact or (on the view which your Lordships now take) the then existing state of the law but (2) a judicial statement of the law operates retrospectively. So this question is whether the retrospectivity of the law-making process enables one to say that holding a contrary view of the law at an earlier stage was a mistake".
And at page 399E:-
"The distinction therefore does not turn upon the fact that the person making the payment could not have discovered the true state of affairs about the law any more than about the facts. It turns upon the purely abstract proposition that in principle (and leaving aside the problem of Schrõdinger's cat) the truth or falsity of any proposition of existing fact could have been ascertained at the time, whereas the law, as it was subsequently be declared to have been, could not.
One must therefore ask why, in the context of unjust enrichment, this should make a difference. In both cases it has turned out that the state of affairs at the time was not (or was deemed not to be have been) what the payer thought. In the case of a mistake of fact, it is because things were actually not what he believed them to be. In the case of a mistake of law, it is by virtue of the retrospectivity of the decision. Does the principle of unjust enrichment require that this retrospectivity should be carried through into the question or whether the payer made a mistake?
In my view, it would be very anomalous if it did not."
"I have concluded that the "misrepresentation of law" rule has not survived the decision in Klienwort Benson Ltd v. Lincoln City Council (supra). Its historical origin is as an off-shoot of the "mistake of law" rule, created by analogy with it, and the two are logically inter-dependent. Both are grounded in the maxim "ignorantia juris non excusat", a tag whose dubious utility would have been enhanced, had it gone on to explain who was not excused and from what. As it stands, it means no more than that ignorance of the general law does not excuse anyone from compliance with it, a proposition with which criminal lawyers are familiar. In translation, it has become distorted and amplified meaning, in such expressions as "everyone" is taken to know the Law", from which follow two further propositions (underpinning the "mistake of law" and "misrepresentation of law" rules respectively) (i) " as you are taken to know the law, it is your fault if you are mistaken as to it, even if I have misrepresented it to you, and because of that you should have no relief". Those two propositions bear little relation to, and do not follow logically from, the maxim "ignorantia juris non excusat", but save for its Latin roots, no basis for the "misrepresentation of law" rule is to be found, as Lane L.J. remarked in Andre. The distinction between fact and law in the context of relief from misrepresentation has no more underlying principle to it than it does in the context of relief from mistake. Indeed, when the principles of mistake and misrepresentation are set side by side, there is a stronger case for granting relief against a party who has induced a mistaken belief as to law in another, than against one who has merely made the same mistake himself. The rules of the common law should, so far as possible, be congruent with one another, and based on coherent principle. The survival of the "misrepresentation of law" rule following the demise of the "mistake of law" rule would be more than a quixotic anachronism. Its demise rids this area of the law of a series of distinctions, such as the "private rights" exception, whose principal function has been to distinguish the "mistake of law" rule, and confine it to a very narrow compass, albeit not to extinguish it completely."
"It is my opinion that the House of Lords decision is specific to the law of restitution and was not intended to apply across the board of every branch of Law"
"I am satisfied that both parties believed that the agreement for lease would validly take effect according to its terms and that had they known of the substantial variation which the Retail Leases Act 1994 would impose upon the agreement, they would not have entered into it"
Palmer J. went on to say:-
"42. I do not need to consider the vexed question of whether the mistake in the present case is one of fact or one of law. As to whether, in the law of Australia, the doctrine of common "mistake applies to" a mistake of law, I need do no more that set out the following passage from Cheshire and Fifoot's Law of Contract 8th Aust Ed., para 12.8:
"Operative mistake traditionally has been confined to mistakes of fact and not of law. This distinction has always been blurred and has been notoriously difficult to apply. It appears that equity did not draw a clear line between mistakes of fact and law. If there was such a rule, it was often honoured in the breach. In Western Australia the law/fact distinction has been abolished by legislation (with certain safeguards). The whole question has now almost certainly been laid to rest by the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353. In that case the distinction between mistake of law and mistake of fact was rejected in the light of a very considerable body of judicial and academic criticism of the distinction.
…the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia."
Admittedly, this was a case about the law of restitution and so it could be argued that the case has nothing to say about mistakes of law in contract. However, the High Court has also rejected the distinction between law and fact for the purpose of estoppel, (See Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387: Foran .v. Wight (1989) CLR 385; Commonwealth v, Verwayen (1990) 170 CLR 394) and so the conclusion is inescapable that the distinction must now be regarded as dead, wherever it might arise.
43 In my opinion, the conclusion expressed in the last sentence of this passage is correct and ought now to be accepted as the law in Australia.
46 For these reasons I am satisfied that the defendants have made good their defence of common mistake and that the mistake was fundamental to the Agreement for Lease. The plaintiff was not at fault as to how that common mistake arose. There is no circumstance which militates against setting aside the Agreement at their suit."
"I am satisfied that at the time of negotiating a settlement and signing the interspousal contract both Trudy and Doug were of the mistaken assumption that the Crown lease land was not matrimonial property. Had the parties realized during their negotiations that the Crown lease land was property, they would have dealt with it in some fashion. Why did they not do so when they discovered their mistake?
26 Until 1989, at common law a mistake of law did not vitiate a contract. A mistake of fact in some circumstances could vitiate the contract. The difficulty was in distinguishing between a mistake of law and a mistake of fact. In order to grant relief "mistakes of law" were sometimes described as "mistakes of fact"
27 Mr Justice Dickson of the Supreme Court of Canada wrote a strong dissent in Hydro Electric Commission of Nepean .v. Ontario Hydro (1982) 132 D.L.R. (3d) 193, advocating the application of equitable principles for both mistake of fact and mistake of law. At page 211 he quoted Professor McTurnan:
"It would be best to abolish the mistake of law rule, place mistakes of law and of fact on an equal footing, and recognise that with mistakes of law the principle of conscious ignorance or conscious assumption of risk will often prevent relief…"
28 The dissent of Dickson J. was accepted by the majority of the Supreme Court of Canada in Air Canada .v. British Columbia (1989) D.L.R. (4th) 161. Thus, the distinction between mistake of fact and law was effectively abolished in Canada contract law. What equitable remedy is now available and when it ought to be applied has, however, become the subject of several conflicting and confusing judgments. Generally the courts require a mistaken assumption to be fundamental to the agreement before it justifies a remedy. The remedy, when prescribed, is usually rescission."
"It is suggested that a mistake of law may now, if sufficiently fundamental to the compromise, operate to invalidate the agreement."
But makes this note:-
"This is also the view of the Editor of Chitty (1999); see Vol 1, para 5-018. It is easier to assert the proposition than to identify the circumstances in which a mistake of law could invalidate a compromise. Suppose that A and B settle a dispute before proceedings are issued against the background of the shared erroneous belief that the limitation period applicable to the dispute in question had not expired. Would that be a mistake of law? If so, would it be right for the compromise to be set aside?"
"The first imperative must be that the law ought to uphold rather than destroy apparent contracts. Secondly, the common law rules as to a mistake regarding the quality of the subject matter, like the common law rules regarding commercial frustration, are designed to cope with the impact of unexpected and wholly exceptional circumstances on apparent contracts. Thirdly, such a mistake in order to attract legal consequences must substantially be shared by both parties, and must relate to facts as they existed at the time the contract was made. Fourthly, and this is the point established by Bell v. Lever Brother Ltd [1932] AC 161, the mistake must render the subject matter of the contract essentially and radically different from the subject matter which the parties believed to exist."
"I agree that if the arrangement come to was a compromise of doubtful rights and a give-and-take arrangement, parties to it could not afterwards have the compromise set aside because upon obtaining fuller information they thought they had made a bad bargain. But, having regard to the evidence, I am of opinion that this arrangement was not a compromise or give-and-take arrangement of the sort I have referred to."
