WLP Trading & Marketing Ltd v Adham Albalous & Anor

Mr Justice Richards : INTRODUCTION

1. The Appellant owned property in Willesden Lane, London (the Property ) that was divided into flats. The two Respondents ( R1 and R2 respectively) occupied two of those flats under assured shorthold tenancies (the Tenancies ). R1 and R2 brought proceedings in the County Court at Central London alleging that the Appellant: i) acted in breach of their tenancy agreements by evicting them; ii) trespassed on their property; iii) destroyed their personal property; and iv) engaged in acts of harassment under s1 of the Protection From Harassment Act 1997 (the Protection From Harassment Act ).

2. That description of the legal nature of the claims brought by R1 and R2 does not bring out the extent of the Appellant’s actions which Recorder Gibbons (the Judge ), in the judgment under appeal (the Judgment ), described as “egregious”. A high-level chronology, distilled from the Judgment and uncontroversial documents, is as follows: i) Both R1 and R2 had been served with notices ( ) under Section 21 Notices s21 of the Housing Act 1988 prior to February 2022. The Judge noted that R2’s Section 21 Notice was expressed to expire in January 2022. He did not make a finding as to when R1’s Section 21 Notice expired (finding only that it was served before 28 February 2022). However, R2 accepts in his skeleton argument for this appeal that he received a Section 21 Notice in November 2021 that required him to vacate his flat by 4 January 2022. ii) R1 was abroad in Syria to attend the funeral of his sister between 18 January 2022 and 18 February 2022. iii) The Appellant started putting pressure on tenants of the Property generally to move out in early February 2022. It disconnected water and electricity on 4 February 2022. One of its agents assaulted a tenant other than R1 and R2 on 18 February 2022. By 19 February 2022, the Appellant had achieved its aim of removing all tenants from the Property and had stationed someone at the Property with a guard dog to prevent any tenant from re-entering. iv) On 19 February 2022, having returned from Syria, R1 found the whole Property had been stripped and his flat had been emptied of all his personal property. R2’s personal property had also been removed by this date. v) Substantial building works were commenced in February 2022 which eventually resulted in the Property being demolished. vi) The Appellant took its actions described above despite the local authority warning its agent that a court order would be needed before it could obtain possession of the flats at the Property. vii) On 25 February 2022, the Respondents issued their claim in the County Court at Central London. They served Particulars of Claim on 3 March 2022. viii) On 28 February 2022, District Judge Worthington made a mandatory interim injunction that required the Appellant to let the Respondents back into occupation. The Appellant did not comply with that order. ix) The Appellant only applied for possession of the Respondents’ flats in April 2022. The Respondents initially defended that application. However, eventually it became clear that the demolition of the Property was so far advanced that they could not go back into occupation and the Respondents withdrew their defences. x) R1 was ordered to give possession on 6 September 2022. R2 was ordered to give possession on 16 August 2022.

3. The Appellant was disputing both liability and the quantum of the Respondents’ claims. It was no more disposed to obey court orders than it was to comply with the law on securing possession of residential premises. It refused to provide a satisfactory disclosure with the result that, on 20 March 2024, HHJ Roberts made an order (the Unless Order ) requiring it either (i) to give disclosure of documents relating to, among other matters, the building works at the Property and the economics of the Appellant’s ownership and proposed development of the Property or (ii) to provide a witness statement explaining why such disclosure could not be given.

4. Paragraph 6 of the Unless Order set out the sanction that would be imposed on the Appellant for non-compliance in the following terms (interposing the various parties’ roles in this appeal in substitution for the terms that HHJ Roberts used to describe them):

6. Unless the [Appellant] complies with paragraph 4 and/or paragraph 5 of this order, the [Appellant’s] Defence to the [Respondents’] claim and the [Appellant’s] claims against the [Respondents] for rent arrears shall be struck out, the [Appellant] shall be debarred from defending the [Respondents’] claim, and judgment shall be entered for the [Respondents] for damages to be assessed, without further order of the Court.

5. The documents to be disclosed under the Unless Order would have been central to issues of both liability and quantum. The Appellant refused to comply with the Unless Order and the sanction imposed by paragraph 6 was activated. The Appellant applied for relief from sanctions which was refused by an order of HHJ Bloom of 3 July 2024 (the HHJ Bloom Order ). The Appellant has no permission to challenge either the Unless Order or the HHJ Bloom Order in the present appeal.

6. There was then a hearing on 9 July 2024 before the Judge. Given that, on activation of the sanction in the Unless Order, judgment had been entered for the Respondents for damages to be assessed, the hearing before the Judge was limited to matters of quantum. The Appellant was represented by counsel (Mr Grant Armstrong) at that hearing and Mr Armstrong filed a skeleton argument in advance of the hearing.

7. Unfortunately, the recording equipment did not work and so I have neither a transcript of the proceedings before the Judge nor a transcript of the Judge’s oral judgment. While the parties have agreed a note of the Judge’s judgment on material issues, I have little to guide me on how the proceedings themselves were conducted.

8. After the oral judgment was given, the terms of it were perfected in an order (the Order Under Appeal ). The damages awarded by the Order Under Appeal are as summarised in the following table: Nature of Damage Amount awarded to R1 Amount awarded to R2 General damages for trespass and unlawful eviction £75,000 (£375 per day for 200 days) £67,125 (£375 per day for 179 days) General damages for harassment £18,000 £28,000 Aggravated damages £7,500 Exemplary damages £20,000 Special damages £21,970.27 £22,380.03 Return of deposit £1,200.00 £1,050.00

9. The Order Under Appeal applied the Simmons v Castle uplift of 10% to the general damages, aggravated damages and exemplary damages (with the figures in the table above being the amounts before that uplift). The Judge also made an order to the effect that the damages awarded should carry interest at the rate of 4.5% until the date of judgment. The result of the Order Under Appeal was that each Respondent obtained damages in excess of £150,000.

10. In the Order Under Appeal, the Judge also awarded the Respondents their costs on an indemnity basis to be the subject of detailed assessment if not agreed. The Judge made an order for the Appellant to make a payment on account of costs.

11. With the permission of Mellor J, the Appellant challenges the Order Under Appeal on 17 grounds. Those grounds will be considered separately later in this judgment. However, by way of broad overview, the grounds seek to challenge the overall award of damages as being manifestly excessive first because the Judge made individual errors in the assessment of the various categories of damages and second because the Judge then simply added up the various components of damages without considering whether the total amount awarded was appropriate.

12. The Appellant’s grounds of appeal are supported by a skeleton argument (the Armstrong Skeleton ) prepared by Mr Armstrong who represented the Appellant before the Judge. The Appellant is now represented by Mr Gifford Head of counsel. Mr Gifford Head has not prepared a skeleton argument of his own in support of the appeal and has therefore broadly adopted the Armstrong Skeleton albeit he puts his own emphasis on the arguments and is perhaps less attracted to some of them than Mr Armstrong was. THE PROPER APPROACH TO THIS APPEAL The effect of paragraph 6 of the Unless Order on the proceedings before the Judge

13. Paragraph 6 of the Unless Order clearly imposed a material constraint on the Appellant’s ability to present a case in the hearing before the Judge. It is appropriate to set out with some degree of precision the extent of that constraint given the Respondents’ arguments, considered in the next section, that it has some bearing on the way the Appellant can present its appeal.

14. The parties were agreed that the applicable law on the extent of a debarring order is set out at [6] and [7] of Calver J’s judgment in Al Saud v Gibbs [2024] EWHC 123 (Comm) ( Al Saud ). There is no challenge to the way in which the Judge conducted the hearing below in the light of paragraph 6 of the Unless Order and therefore in this section I will focus on the Judge’s unchallenged conduct of the hearing: i) The Unless Order had four effects. First, it struck out the Appellant’s claims against the Respondents. Second, it struck out the Appellant’s defence to the Respondents’ claims summarised in paragraph ‎1 above. Third it provided for the Respondents to obtain judgment for damages to be assessed. Fourth it debarred the Appellant from defending the Respondents’ claims. ii) In accordance with paragraph [7(ii)] and [7(iii)] of Al Saud , the Judge did not permit the Appellant to adduce evidence, cross-examine the Respondents’ witnesses or (subject to paragraph ‎iii) below), make submissions in defence of the claim or make submissions challenging the Respondents’ case. iii) However, the Judge had received a skeleton argument on behalf of the Appellant that asserted the existence of a “residual discretion or trial management power” to permit the Appellant to take some part in the hearing if it considered that the Judge was proposing to grant excessive relief based on a misunderstanding of the scope of the claim referred to at [7(v)] of Al Saud. The Judge evidently accepted that submission because the Order Under Appeal refers to him hearing from Mr Armstrong albeit “subject to restrictions in consequence of [the Appellant] having been debarred by operation of paragraph 6 of the [Unless Order]”. Mr Marsh-Hyde represented the Respondents before the Judge as he does before me and was able to confirm that, in particular, the Judge heard submissions from Mr Armstrong on the number of days for which general damages for trespass and wrongful eviction should be awarded. iv) The Judge evidently had regard to the Appellant’s pleaded defence to “set the scene and clarify matters in the claim” in line with [7(vi)] of Al Saud . Indeed, the Judge perhaps went a bit further than this as he considered the Appellant’s argument that both Respondents had surrendered their tenancies in January 2022 “and left the premises and moved out taking their goods with them”. Perhaps he was not obliged to do that given that the defence had been struck out. v) The Judge heard from Mr Armstrong on the Appellant’s behalf on costs matters and before finalising the form of order, in line with [7(v)] of Al Saud . The proper approach to challenges to the Judge’s evaluative conclusions

15. In order to assess the amount of general and aggravated damages properly payable, the Judge was essentially reaching an evaluative conclusion as to what amount of money would compensate the Respondents for the loss or damage suffered. The determination of exemplary damages, although not linked to loss, was also evaluative in the sense that the Judge needed to decide on a level of damages necessary to show the Appellant that it could not act with impunity.

16. Not all of the Appellant’s challenges are to evaluative conclusions such as this. For example, Grounds 14 and 15 assert that there was a hard-edged principle of law to the effect that the Judge could not award the Respondents more than £100,000 in total because they had limited their claim to that sum in the Particulars of Claim. However, since a number of the Appellant’s challenges are to evaluative conclusions on which there was not a single “right” answer, and on which different judges might come to different conclusions, it is important to consider the correct approach to such challenges.

17. The Appellant accepts that, in order to succeed with an argument that the Judge should have reached a different conclusion on a matter of evaluation, it is not sufficient to show that the different conclusion in question would have been available to the judge, or even preferable. Rather, it accepts that it would need to show either that the Judge reached his evaluative conclusion by taking into account irrelevant considerations, or failing to take into account relevant considerations, or that the Judge’s conclusion was outside the range of reasonable conclusions. The Appellant did not provide authority for that proposition, but the Respondents do not dispute it.

18. I broadly accept the Appellant’s formulation which is consistent with the following statement of Lord Reed in Henderson v Foxworth Investments Ltd [2014] UKSC 41 at [67]: It follows that, in the absence of some other identifiable error, such as (without attempting an exhaustive account) a material error of law, or the making of a critical finding of fact which has no basis in the evidence, or a demonstrable misunderstanding of relevant evidence, or a demonstrable failure to consider relevant evidence, an appellate court will interfere with the findings of fact made by a trial judge only if it is satisfied that his decision cannot reasonably be explained or justified.

19. Evaluative conclusions, of course, require “evaluation” that consists of the application of logic and reasoning to primary facts. If it is clear that something significant has gone wrong with that process of evaluation, that can be the kind of “identifiable error” that Lord Reed had in mind. As Newey LJ said in Rea v Rea and others [2024] 26 ITELR 794 (after quoting the extract from Henderson v Foxworth Investments set out above): [42] The position is similar with evaluative assessments. An appellate Court will not interfere merely because it might have arrived at a different conclusion. It will do so only if it considers the decision under appeal to have been an unreasonable one or wrong as a result of some identifiable flaw in reasoning, 'such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion' (see eg R (R) v Chief Constable of Greater Manchester [2018] 1 WLR 4079 , para 64, and also In re Sprintroom Ltd [2019] 2 BCLC 617 , paras 76 and 77).

20. Those principles will apply in any appeal which involves a challenge to a judge’s evaluative findings. However, the Respondents argue that another principle should be applied in this appeal. They say that, because paragraph 6 of the Unless Order constrained the Appellant’s participation in the proceedings below, almost every point that it wishes to raise in support of its appeal against evaluative conclusions will necessarily be a “new point” that is being raised for the first time on appeal. They argue that this court should apply the following principles, set out at [15] to [19] of Haddon-Cave LJ’s judgment in Singh v Dass [2019] EWCA Civ 360 to any “new point” that the Appellant raises:

15. The following legal principles apply where a party seeks to raise a new point on appeal which was not raised below.

16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.

17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial ( Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).

18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs . (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24 ; [2017] RTR 22 at [29]).

21. The Appellant denies that it is running any new points on appeal in relation to evaluative findings that it could or should have run before the Judge. Rather, having seen the Judge’s judgment, the Appellant says that it is seeking to establish that the judgment is flawed in the sense set out in paragraphs ‎18 and ‎19 above. In the Appellant’s submission, those arguments could be advanced only once the judgment was given with the result that the points in question could not have been aired at the hearing before the Judge.

22. I am unable to accept that submission. All appeals are advanced in the light of conclusions expressed in a judgment. That judgment will always be given after evidence and submissions have been heard. What matters is the reasons why the Appellant says that the Judge’s conclusions in the judgment were wrong. Those reasons may establish that a particular point is “new”.

23. An example illustrates the point. One of the Appellant’s grounds of appeal is that the Judge had “ignored” the Respondents’ failure to mitigate. The Appellant accepts that paragraph 6 of the Unless Order meant that it could not rely on its own evidence in support of an argument to the Judge that the Respondents failed to mitigate loss. However, the Appellant says that there was evidence in, for example, R1’s own witness statement detailing discussions with the local authority about housing in January 2022 (before the alleged unlawful eviction). The Appellant’s position is that, if the Respondents’ witness statements provided evidence in support of the Appellant’s case by, for example, showing that reasonable offers of alternative accommodation were available, the Judge should have considered the relevant parts of those statements. The Appellant says it can, therefore, rely on the contents of those witness statements in this appeal even if the relevant provisions were not drawn to the Judge’s attention below.

24. In my judgment, points such as these are indeed “new points”. The legal tradition in this country is adversarial. If the Appellant considered that passages in the Respondents’ witness statements detailing their dealings with local authorities shed light on whether they had failed to mitigate loss, in the ordinary course the Appellant would raise that issue in cross-examination of the Respondents and when making submissions to the Judge. Yet the Unless Order specifically prevented the Appellant from taking that course. If there is, as the Appellant argues, total freedom to pursue points such as this on appeal, the sanction imposed by the Unless Order is deprived of considerable effect.

25. The Appellant objects that this analysis gives the Respondents a “blank cheque” by depriving the Appellant of any real ability to challenge the Order Under Appeal. I disagree. As Singh v Dass explains, a court will offer much more latitude to the Appellant in pursuing a new point consisting of a “pure point of law”. If, therefore, the Judge had awarded damages for losses that were not pleaded, an appeal court might well alter that finding on appeal, although it might first wish to understand why the Appellant had not sought to make that objection to the Judge in accordance with [7(v)] of Al Saud . The Respondents are not, therefore, given a “blank cheque” and the Appellant remains entitled to say, on appeal, that the Respondents have obtained a remedy in excess of that to which they are legally entitled.

26. However, in my judgment, the Appellant is not entitled to assemble a collection of factual or evidential matters that it was precluded from putting before the Judge by the terms of the Unless Order, and introduce those matters on appeal under the guise of challenging the Judge’s asserted failure to take into account relevant considerations. One way of analysing that proscription is that the Appellant should not generally be permitted to advance new factual points on appeal for the first time (see Singh v Dass ). Another way would be to say that the challenge involves mislabelling: the Judge cannot properly be said to have “ignored” matters that the Appellant was precluded by the Unless Order from putting before him. Perhaps a still further way is that the Appellant should not be permitted to rely on factual and other assertions contained in its defence which had been struck out.

27. Whichever formulation of the proscription is correct, I will be vigilant, when considering the Appellant’s various grounds of appeal not to permit it to advance a factual case, including by making submissions on evidence, that it could not, because of the Unless Order, have advanced before the Judge. The rationale for the rule in Singh v Dass is that the first instance tribunal is the proper venue for the resolution of factual disputes. The Appellant chose not to comply with the Unless Order and thereby became subject to a sanction that had a significant impact on the way it could present its factual case. The Appellant has been refused permission to challenge the Unless Order or its effect. It would not be right for the Appellant now to be able to side-step the sanction imposed by the Unless Order: that would enable it to preserve any benefit that it obtained from its failure to give disclosure while watering down the sanction that it suffered for that breach.

28. That leads to the question of “perversity”. I agree with the Appellant to this extent: if an ostensibly evaluative conclusion of the Judge truly was “perverse”, this court should not uphold it. Whether it was subject to the sanction imposed by the paragraph 6 of the Unless Order or not, the Appellant is entitled to receive a just determination. However, any assessment of whether the Judge’s determination was “perverse” or not has to take into account the conditions under which the Judge was operating. He was not receiving evidence and submissions from both sides because of the Unless Order. The Judge’s evaluation does not become “perverse” simply because there may have been good arguments that the Appellant could have deployed in favour of a lower damages award had it not been subject to the sanctions in the Unless Order. Grounds 10 and 11: failure to “stand back” leading to an overall excessive award

29. It is appropriate to consider these grounds first since they are at the heart of the Appellant’s complaints. The Appellant’s central case is as follows: i) Ground 11 – the totality of the Judge’s award of damages taken as a whole and under the separate headings was excessive. ii) Ground 10 – The Judge failed to apply any judicial evaluation and critical analysis to the Respondents’ claims as to their respective losses. In his oral submissions, Mr Gifford Head characterised this as a failure by the Judge to “stand back”: he added together individual awards of damages without considering whether the totality of that award was appropriate.

30. Ground 11 suffers from a fundamental difficulty. At no point has the Appellant explained what it considered a “reasonable” total award would be. The most it did was to set out lower daily rates that could have been applied in connection with its arguments on Grounds 1 and 2 which I consider in the next section. Therefore, the argument on Ground 11 involved little more than a general assertion that the Judge’s award of damages was, in some undefined sense, “too much”.

31. I do not consider that an appeal on that basis can succeed. It is simply an invitation to me to conduct a roving and impressionistic review, without having been taken through all the evidence. Moreover, the Appellant’s approach focuses only on one factor, the absolute size of the award. That makes no attempt to consider the harm and loss that the Respondents suffered. Without some submissions that as to what a fair award should be, given the harm and loss suffered , I do not see how I can conclude that the Judge’s award was excessive.

32. That difficulty persisted when the Appellant explained the order that it seeks should its appeal be allowed. It acknowledged the difficulty that this court would have in determining a reasonable lower award and suggested that the matter be remitted back to the county court for a fresh determination. The Appellant accepts that it would remain subject to the sanctions in paragraph 6 of the Unless Order at any such remitted hearing. It is difficult to see any utility in that process. At any such hearing, the judge would be entitled to follow the approach set out in paragraph ‎14 above. Having followed that process, the judge may well determine a different overall award of damages. However, it is difficult to see how this court could have confidence that any such award would be either fairer or “better” than the award the Judge made.

33. I dismiss the appeal on Ground 11.

34. Turning to Ground 10, the assertion that the Judge failed to “stand back” and consider the totality of the award, is inconsistent with the Judgment. Before deciding to award exemplary damages, the Judge directed himself, by reference to Mehta v Royal Bank of Scotland (2000) 32 HLR 45 ( Mehta ) that an award of exemplary damages “should not confer a windfall”. Before deciding to award exemplary damages, the Judge therefore considered the totality of the compensation awarded under “compensatory” heads. Since the Judge concluded that exemplary damages should be awarded, he necessarily determined that there would be no “windfall” in awarding more than the amount of damages assessed under the compensatory heads. That is entirely consistent with the Judge “standing back” and considering the totality of the proposed damages award.

35. The Appellant also criticises the Judge for accepting the Respondents’ witness evidence without “further enquiry into obvious points as to where the Respondents were living at each stage and the overall effect on each”. There is no force in that criticism. If the Appellant had not been subjected to the sanction in the Unless Order, it would have been entitled to challenge the Respondents’ evidence. Once the Appellant lost that right, because it refused to comply with the court’s orders for disclosure, it was not for the Judge to take over cross-examination of the Respondents. The Appellant has not pointed to the specifics of the Respondents’ witness statements to show any particular passages that were obviously to be disbelieved.

36. I dismiss the appeal on Ground 10. Grounds 1 and 2: general damages for trespass and unlawful eviction The Judge’s decision and the challenges to it

37. The Judge decided that damages should be awarded by applying a daily rate for every day in the period over which the Respondents had been kept out of occupation. An arithmetic analysis shows that he started that day count on 18 or 19 February 2022 and ended it on the dates on which the Respondents were ordered to give possession determining that R1 was kept out of occupation for the 200 days until 6 September 2022 and R2 for 179 days until 16 August 2022.

38. The Judge consulted a schedule of other cases in the county court, noting that they were not binding on him. He concluded those cases suggested that the daily rates were somewhere between £250 and £380, when adjusted for inflation, but there was an “outlier” that calculated damages at £1,200 per day. He decided that the appropriate rate was £375 per day which produced a calculation of £75,000 for R1 and £67,125 for R2.

39. The Appellant’s grounds of appeal against that determination that were before Mellor J when he gave permission were: i) Ground 1 – the award at the £375 daily rate was manifestly excessive and a maximum daily rate of £250 should have been adopted with that figure being explained as “£150 for sofa-surfing and £100 per night” in the Armstrong Skeleton. Moreover, R1’s Schedule of Loss stated that he was on holiday for 45 days of the period and should not have received any damages in relation to that period. ii) Ground 2 – the Judge failed to have any regard to the Respondents’ failure to mitigate loss either (i) by failing to accept a tenancy of alternative accommodation which the Appellants had offered or (ii) failing to accept reasonable offers of accommodation by the local housing authority. Grounds 1 and 2 considered

40. I am unable to accept the Appellant’s arguments that the £375 daily rate was “manifestly excessive”. The Respondents presented the Judge with a summary of various other cases showing daily rates that had been used in different cases. The Respondents had uplifted the daily rates by inflation since some of the cases were over 10 years old. Once inflation is taken into account, the Judge’s choice of daily rate was well within the parameters of other decided cases. It was a matter of evaluation for the Judge to decide which daily rate in the range was appropriate in the case before him.

41. The Appellant points to lower daily rates that were used in other cases: Hahn v McLeary (Bristol County Court 17 December 2013), Zeeshan v Mahmood (Manchester County Court 27 October 2017) and Sanchez v Simple Properties (Central London County Court 24 February 2020). However, the Appellant has not adjusted the daily rates in those cases for inflation. Moreover, the Appellant has chosen a selective sample: in some of the cases to which the Judge referred, a higher rate than £375 per night was used (once allowance is made for inflation). There are echoes here of the Appellant’s approach summarised in paragraph ‎31 above. All sorts of arguments could have been deployed before the Judge in support of an argument that lower daily rates should be applied. For example, it could be said that the Respondents’ financial loss from being wrongly evicted was modest: after the wrongful eviction they were no longer paying rent to the Appellant and therefore, to the extent that they were paying rent in a similar amount to someone else that was not a loss. The Appellant might even have said that, to the extent that the Respondents were “sofa surfing” and relying on the kindness of friends and family, they were not paying rent to anyone and that too should be reflected in the daily award. However, the Appellant was not permitted to advance arguments such as this before the Judge and has not even attempted to do so on appeal. It simply refers to an absolute rate and asserts that it is “too high”, presenting a necessarily unbalanced picture, since it does not refer at all to the harm and loss that the Respondents suffered.

42. In oral submissions, Mr Gifford Head submitted that the Judge should have tapered the daily rate of £375 over time to reflect the fact that the hurt and distress of the unlawful eviction would itself reduce over time. That is a new point that is being raised for the first time on appeal. If the matter had been raised before the Judge it would have been necessary to embark on a factual enquiry as to the precise nature of the Respondents’ loss, damage and distress and consider whether it did indeed reduce over time. The hearing before the Judge would, therefore, have been conducted differently as regards the evidence that was before the Judge. This point should not be considered the first time now on appeal.

43. Moreover, there was evidence before the Judge from which he could properly conclude that the damage caused by wrongful eviction did not taper over time: i) R1’s evidence was that from 18 February 2022 to 1 September 2022, he was unable to secure alternative accommodation. He was obliged to “sofa surf” spending nights here and there with neighbours, his nephew and his daughter. R1 also explained his previous medical conditions that included sciatica and back pain that was exacerbated by his experiences and also said that his mental health had deteriorated owing to the stresses of having nowhere fixed to live. R1 also said that he had to put on hold his efforts to find work during this period. ii) R2 has also given evidence as to the deleterious effects of sofa surfing. He said that his health and wellbeing had deteriorated over the period and that he had to increase his medication for blood pressure and depression over the period.

44. R1 takes exception to the references in Ground 1 to him being on holiday for a 45-day period. He takes the reference to that period as being to when he was in Syria for his sister’s funeral and says that to describe it as a “holiday” is offensive.

45. I suspect that the parties may be at cross-purposes on this issue. R1 was in Syria for his sister’s funeral before 19 February 2022. The Appellant’s reference to the 45-day “holiday” refers to R1’s “Schedule of Loss”. Most of that Schedule referred to losses associated with the destruction of R1’s personal possessions. However, it also contains a section headed “Out of Pocket Expenses” that refers to the cost of eating meals at cafés for breakfast lunch or dinner for the period: 19th February 2022 – 31st August 2022 less holidays circa 45 days =117 days

46. Thus, I take R1’s Schedule of Loss to state that he was on holiday for 45 days after 19 February 2022 and to accept that he should not be compensated for costs of eating out in that period (presumably because that is an ordinary incident of being on holiday which does not involve any loss caused by the Appellant). I take the Appellant’s Ground 1 to fasten onto those 45 days and to assert that R1 should not obtain a daily rate for those days either. I do not, therefore, consider that the Appellant is referring to the time that R1 was in Syria for his sister’s funeral as a “holiday”.

47. I reject the Appellant’s challenge relating to the 45-day period. It is true that the Judgment does not refer to this 45-day period or consider whether the £375 daily rate should continue to accrue during it. However, I consider this to be precisely the kind of new point that should not be run for the first time on appeal. If, at the hearing before the Judge, the Appellant had argued for no daily rate to accrue during this period, some examination would have been needed about what precisely R1 was doing during the period and what expenses he was continuing to incur during the period even though he was on holiday. That is a situation of the kind considered at [17] of Singh v Dass referred to in paragraph ‎20 above as the hearing would have been conducted differently by reference to the evidence that was before the Judge. The Appellant should not be permitted to make points such as this for the first time on appeal.

48. The same applies to Ground 2 based on alleged failure to mitigate. The Appellant’s assertion that the Respondents had failed to mitigate loss was set out in paragraph 14 of its defence which was struck out. The Judge made no error in declining to consider this issue. As explained in paragraphs ‎23 and ‎24 above, arguments based on asserted failure to mitigate loss are new points that the Appellant is impermissibly seeking to run for the first time on appeal having been precluded from advancing them before the Judge.

49. Both Ground 1 and Ground 2 as formulated above fail.

50. It can be seen that Ground 1 was focused on the proper daily rate. It only sought to challenge the period over which the daily rate accrued (as distinct from the daily rate itself) in relation to the 45 days on which R1 was said to be on holiday. Nevertheless, before me, there was some discussion as to whether damages truly should accrue over the full period from the unlawful eviction until the date of the possession order. In his oral submissions on behalf of the Respondents, Mr Marsh-Hyde submitted that the judgment of the Court of Appeal in Smith v Khan [2018] EWCA Civ 1137 compelled that conclusion.

51. I express no view on whether that is correct. Given the scope of Ground 1, I have not heard full argument on the point. Perhaps if the Appellant had not been debarred by paragraph 6 of the Unless Order, it might have wished to argue that the fact that it had served Section 21 Notices that expired in January 2022 meant that the circumstances were distinguishable from Smith v Khan so that damages should be computed on a different basis. However, that forms no part of the grounds of appeal to this court and I say no more about it. Grounds 3 and 4: general damages for harassment The Judge’s decision and the challenges to it

52. The Judge concluded that damages under the Protection From Harassment Act should be calculated by reference to the bands and brackets provided for in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 ( Vento ). He adjusted those bands to allow for inflation since the date of the judgment in Vento.

53. He concluded that the appellant’s conduct was “particularly egregious”. Nevertheless, he did not consider that the harassment was such as to justify compensation in the top band of the brackets provided for in Vento because there had been no “lengthy campaign”.

54. The middle band provided for in Vento was, adjusted for inflation, somewhere between £10,823.53 and £32,470.59. The Judge noted that the effect of the harassment on R1 was lower than the effect on R2 because R1 had been away in Syria for part of the period during which the harassment was perpetrated. The Judge assessed damages under the Protection From Harassment Act as being £18,000 in R1’s case and £28,000 in R2’s case.

55. The Appellant appeals against the Judge’s determination on the following grounds: i) Ground 3 – R1 should not have received any damages under the Protection From Harassment Act as he was not present at the time of the eviction and not even in the country when the act complained of took place. ii) Ground 4 - the award was excessive and should not have been placed at the upper end of the lower band/bottom of middle band. Grounds 3 and 4 considered

56. There is no exhaustive definition of “harassment” in the Protection From Harassment Act. However, s7(2) states that it includes “alarming the person causing the person distress”. While R1 was in Syria for his sister’s funeral, the Judge found that the Appellant through its agents disconnected water and electricity serving R1’s flat. Its agents also entered R1’s flat and removed his personal possessions. Those are certainly capable of being acts of harassment. Moreover, paragraph 6 of the Unless Order required judgment to be entered for R1 on liability.

57. Ground 3 involves an assertion that because R1 did not witness act of harassment first-hand because he was out country, he should obtain no damages at all. It is a new point raised for the first time on appeal. If the Appellant had raised it before the Judge, it would have been necessary to embark on a factual enquiry such as, for example, the extent to which R1was aware of what was going on at the Property even though he was out of the country. That would have necessitated a different focus on the evidence that R1 did give or perhaps even cross examination of R1 and what he said in his witness statement. Either course would have resulted in the Judge receiving either new factual evidence conducting the trial differently by reference to the evidence that he had. In line with Singh v Dass , Ground 3 should not be run for the first time appeal.

58. There is no force in Ground 4. I did not understand the Appellant to dispute that the judge should compute entitlement to damages under the Protection From Harassment Act by reference to the Vento bands. Nor do I understand the Appellant to dispute that the middle band is the appropriate one in this case. The Appellant’s challenge is rather to the precise figure in that middle band that formed an appropriate basis for an award of damages.

59. The Appellant has simply advanced a general point that the figures that the Judge selected from the middle band were “too high”. That is insufficient to displace the Judge’s conclusion on an evaluative matter.

60. The Appellant also argues that there was some unspecified, “overlap” between damages awarded under the Protection From Harassment Act and general damages awarded for trespass and unlawful eviction. I can accept that there might be some such overlap. However, the Judge rationalised the harassment as consisting of events that led up to the unlawful eviction. Therefore, if the Appellant wished to establish that there was an overlap that resulted in the Respondents being over-compensated, it would have been necessary to explain precisely where the Judge’s rationalisation of the dividing line between harassment and unlawful eviction broke down. If the Appellant had raised the matter before the Judge it would have been necessary to look carefully at those acts that were said to constitute part of the unlawful eviction and determine whether, to any significant extent, the award of damages involved a double count. That would have involved the hearing before the Judge being conducted differently by reference to the evidence that was before him. It is not right for the matter to be explored now for the first time on appeal.

61. Moreover, I am not satisfied that the Judge’s determination of the amount of damages payable under the Protection From Harassment Act was perverse. All sides accept that damages were properly determined by reference to the middle of the Vento bands. The Judge discounted the amount of damages payable to R1 to reflect his absence from the country. Overall, I am satisfied that the Judge’s evaluative conclusion on the amount of damages payable under the Protection From Harassment Act was available to him. The appeal on Grounds 3 and 4 is dismissed. Grounds 5 and 6: aggravated damages The Judge’s determination and the challenges to it

62. The Judge directed himself by reference to the judgment of Richard Southwell QC, sitting as a deputy High Court judge in Mehta that aggravated damages are compensatory, rather than penal. He concluded that the purpose of aggravated damages is to “reflect the aggravation of the injuries caused by the tort itself”.

63. The Judge referred to the evidence that I have summarised in paragraph ‎43 above and concluded that the Appellant’s actions had aggravated pre-existing vulnerabilities of the Respondents. The Judge considered that he could take into account the Appellant’s conduct when fixing the level of aggravated damages and that it was therefore relevant that, as in Mehta , the Appellant was motivated by profit and chose to ignore advice from the local authority that it needed a possession order from the court before it could evict the Respondents.

64. The Judge emphasised that the total award of both general and aggravated damages should not exceed “fair compensation for injury”. He decided that £7,500 in aggravated damages should be awarded to each Respondent to compensate for what he held to be exceptional injury, and in particular mental distress.

65. The Appellant seeks to challenge that determination on two grounds: i) Ground 5 – the overall award of general and aggravated damages was excessive and involved double counting. It did not take into account “holiday periods” and the Respondents’ failure to mitigate loss. ii) Ground 6 – the Judge took into account prospective gains from the overall development of the Property when there was no evidence that any unlawful eviction gave the Appellant any material financial advantage. Grounds 5 and 6 considered

66. The Armstrong Skeleton said little about Grounds 5 and 6 and Mr Gifford Head did not focus on them in great detail. As pursued in Mr Gifford Head’s oral submissions, the Appellant’s complaint is that the aggregate of the general damages and aggravated damages was simply outside the reasonable range. Part of the reason for that, Mr Gifford Head argues, is that the Judge failed to allow for double counts as between the compensation under the Protection From Harassment Act, the general damages and the aggravated damages. There is an overlap between these arguments and points that I have already considered and rejected in relation to Grounds 4 and 10 above.

67. If the case was being argued afresh, and the Appellant was not subject to the sanction in paragraph 6 of the Unless Order, I can quite understand that the Appellant might have made cogent submissions that sought to bring out potential double, or multiple, counts of loss as a means of reducing an overall damages award. However, the fact that cogent submissions could be made does not mean that the Judge’s evaluative conclusion was outside the reasonable range. The Respondents would be quite entitled to argue that there were no double counts: the damages for harassment compensated for loss up to the unlawful eviction itself, the general damages for unlawful eviction/trespass dealt with matters thereafter and the aggravated damages compensated for aggravation of the Respondents’ existing vulnerabilities and mental distress.

68. Indeed the Appellant’s arguments on these grounds of appeal suffer from the same difficulty as is summarised in paragraphs ‎31 and ‎32 above. The Appellant has not sought to quantify the extent of any “double counts” by explaining what a lower reasonable award of damages would have been.

69. Ground 5 fails for those reasons. To the extent that Ground 5 relies on an assertion of the Respondents’ failure to mitigate loss, it fails for the reasons set out in paragraphs ‎23, ‎24 and ‎48 above.

70. The Judge’s comments to the effect that he could consider the Appellant’s conduct in using the wrongful eviction as a means of accelerating development of the Property raise the question as to whether he was blurring the distinction between exemplary damages and aggravated damages. However, I have only a note of an ex tempore judgment and I should be careful to read that note as a whole and not give isolated passages undue prominence. Once the note is read as a whole, I conclude that the Judge did not blur that distinction. He was careful to note that aggravated damages are compensatory only and should not enable the Respondents to obtain more than “fair compensation for injury”. He noted that exemplary damages are awarded for a purpose different from aggravated damages. I am not satisfied that the error alleged in Ground 6 is present. Grounds 7 to 9 – exemplary damages The Judge’s determination and the challenges to it

71. The Judgment shows that the Judge concluded that the Appellant deliberately evicted the Respondents unlawfully reasoning that this would enable it to make more money by developing the Property than it would have to pay out in damages.

72. The Judge noted that the proposed development would increase the footprint of the Property by a factor of five and that the Appellant had purchased the Property for £2.145m in 2018. The size of the development was emphasised by the fact that it triggered a Community Infrastructure Levy ( CIL ) of £500,000, with the Judge criticising the Appellant’s attempts to delay payment of the CIL.

73. The Judge concluded that the development would result in the Appellant owning a property worth at least £10m, and possibly considerably more. He determined that the Respondents should receive £20,000 each in exemplary damages.

74. The Appellant seeks to challenge that determination on three grounds: i) Ground 7 – it was wrong in principle to award exemplary damages at all and the award was “grossly excessive”. ii) Ground 8 – there was a double count between the award of exemplary damages and the award of aggravated damages. In addition, the Judge took into account irrelevant considerations namely the Appellant’s conduct in relation to the CIL and the size of the Property and ignored the fact that the Respondents only occupied small flats in the Property. iii) Ground 9 – the Judge failed to have regard to: a) the fact that the unlawful eviction of the Respondents did not increase provide the Appellant with an overall financial advantage; and b) the loss the Appellant suffered from the Respondents’ interim injunctions being in place between 27 February/1 March 2022 and 31 August 2022 which was never compensated under the cross-undertaking in damages. Grounds 7 to 9 considered.

75. It was not “wrong in principle” for the Judge to award exemplary damages. Exemplary damages are properly awarded to tenants who a landlord deliberately evicts wrongfully in the expectation that the financial benefit of doing so will outweigh any damages (see, for example, Drane v Evangelou [1978] 1 WLR 455 ).

76. I have dealt already with other arguments to the effect that damages awarded were excessive. The same analysis applies to the Appellant’s criticisms of the award of exemplary damages. Indeed, the Appellant’s arguments as to the quantum of the exemplary damages awarded are particularly weak in circumstances where it declined to disclose details of financial benefits it would obtain from developing the Property. The Appellant criticises the Judge’s calculation of the £20,000 exemplary damages as being made “on the back of an envelope”. There is no force in that argument. Certainly the Judge applied a “broad axe” when determining exemplary damages, but he did so precisely because the Appellant’s failure to give disclosure did not permit him to undertake a more exact exercise.

77. The appeal on Ground 7 is dismissed for those reasons.

78. Turning to Ground 8, the Judge was clearly aware that the Respondents occupied just two flats in a larger Property. That fact is mentioned at the beginning of the Judgment and the Judge did not “ignore” it. The Appellant’s conduct in relation to the CIL was also relevant: it showed the scale of the development of the Property and also showed the Appellant’s propensity to seek commercial advantage by failing to meet its legal obligations. That went directly to the Judge’s determination that the Appellant was similarly seeking commercial benefits by wrongfully evicting the Appellants.

79. The “double count” alleged in Ground 8 has not been explained. Even if it had been, the allegation of a double count would involve the Appellant running a point for the first time on appeal in circumstances where, if the point had been advanced before the Judge, the trial would have been conducted differently in relation to the evidence.

80. The appeal on Ground 8 is dismissed.

81. The appeal on Ground 9 is dismissed because: i) There is no force in the argument that the Judge “failed to take into account” the “fact” that there was no material financial advantage to the Appellant from the wrongful evictions. The Appellant had refused to provide full disclosure of its financial position in relation to the development. If the Appellant had wished to establish the “fact” on which it now seeks to rely, it should have provided that disclosure, avoided the sanction in the Unless Order and made its case to the Judge. Having not followed that path it cannot now assert the presence of this “fact” for the first time on appeal. ii) The argument as to the effect of the interim injunctions is a paradigm example of a new factual point being impermissibly run for the first time on appeal. Grounds 12 and 13 - special damages The Judge’s determination and the challenges to it

82. Both Respondents had produced schedules of special damages that they had suffered from the wrongful eviction. These consisted primarily of items of personal property that the Appellant removed from their flats and destroyed. Both Respondents also claimed for the incremental costs associated with eating meals at cafés rather than preparing them at home at a daily rate of £30. R1 claimed this cost for 117 days from 19 February 2022 to 31 August 2022. R2 claimed for 305 days from 19 February 2022 to 21 December 2022.

83. The Judge considered those schedules of loss. He saw no reason to doubt the genuineness of the Respondents’ claims noting that, since property had been destroyed it was no easy task to quantify the precise value of the items lost. He acknowledged that the Respondents’ figures therefore involved some degree of guesswork, but concluded that their figures “appear eminently reasonable”. He awarded both Respondents the full amount of the special damages they sought.

84. The Appellant challenges that conclusion on the following grounds: i) Ground 12 – the Judge failed to conduct any realistic enquiry into the special damages claimed. In particular, the Judge failed to have regard to (i) the life expectancy of the items lost or (ii) the extent to which the Respondents actually spent money in replacing them. ii) Ground 13: a) The Judge should not have awarded special damages at all for the cost of eating out since that would have been reflected in the general damages awarded for unlawful eviction. b) In any event, R2 should not have been awarded damages reflecting the cost of eating out for a period of 305 days. Grounds 12 and 13 considered

85. Paragraph 26-163 of the 24 th Edition of Clerk and Lindsell on Torts states: Where goods are destroyed by the wrongful act of the defendant, the normal rule is that the claimant is entitled to the sum of money which he would have to pay in the market for identical or essentially similar goods…

86. The Appellant does not invite me to doubt that statement and therefore the challenge under the first part of Ground 12 is to the Judge’s acceptance of the Respondents’ figures. The Respondents served their schedules of special damages claimed in May 2024, before the Appellant was subjected to the sanction in the Unless Order. If the Appellant had wished to lead evidence challenging those schedules, it could have done so. When it declined to do so, and was subjected to the sanction in the Unless Order, it is not realistic to assert that the Judge should have disbelieved the Respondents’ schedules or taken over cross-examination of the Respondents on the figures set out in their schedules. I can understand that some of the sums the Respondents were claiming were perhaps on the high side. I wonder, for example, if two tubes of toothpaste would cost £10 to replace. However, the Judge needed to look at the damages claimed as a package and overall, particularly in the absence of any permissible challenge from the Appellant, he was entitled to be satisfied that the Respondents’ claims were reasonable.

87. I did not understand the second part of Ground 12 to be pursued. It was not mentioned in Mr Gifford Head’s submissions. I do not consider this aspect of the appeal to be made out: the Respondents suffered loss from having their property destroyed even if they did not choose to replace any particular item that was destroyed.

88. The appeal on Ground 12 is dismissed.

89. The appeal on Ground 13(a) fails for reasons that have been canvassed elsewhere in this judgment. I can certainly understand how an overlap between the special damages and the general damages for unlawful eviction could be asserted. However, because it was subject to the sanction in the Unless Order, the Appellant did not advance that argument before the Judge. It is not open to the Appellant to advance, on appeal, a general argument that there was some unspecified “overlap” between one head of damages awarded and another in circumstances where the precise extent of that overlap was not before the Judge and has not been explained to me.

90. I will, however, allow the appeal to the limited extent of the Ground set out in paragraph ‎84.ii)b). The Judge cannot be criticised for failing to spot himself that R2 was claiming the costs of eating out for an excessive period. The point should have been identified either by R2 himself, or by the Appellant in exercise of the residual latitude to make submissions that the Judge afforded which I have summarised in paragraph ‎14.iii) above. Now that the point has been identified, as R2 realistically accepts, it cannot stand. Following circulation of the embargoed judgment in draft, the Appellant and R2 confirmed that the correct way to give effect to the allowance of the appeal on Ground 13(b) is to provide for the Appellant to pay damages to R2 for the costs of eating in cafés for 179 days. Grounds 14 and 15 – Statement of value in the Particulars of Claim

91. The court awarded each Respondent over £150,000 in damages. Grounds 14 and 15 are effectively a single ground of appeal which assert that the Judge was not entitled to make such an award in circumstances where the Respondents’ Particulars of Claim (dated 3 March 2022) pleaded a claim for damages in the following terms (with emphasis added): Damages (General, Special, Aggravated & Exemplary) in excess of £1,000 but less than £100,000 .

92. CPR 16.3(2) requires a claimant to specify in the claim form how much it expects to recover by reference to four “bands”. However, CPR 16.3(7) provides expressly that the statement of value in a claim form does not limit the court’s power to give judgment for the amount to which it finds a claimant to be entitled. The Appellant does not base these grounds of appeal on CPR 16.3. It notes that the Respondents provided a certificate of value in the claim form to the effect that they expect to recover “up to £25,000”, but accepts that CPR 16.3(7) means that this did not limit the damages that the Judge could award. Its appeal on this ground focuses on the statement in the Appellant’s Particulars of Claim.

93. Neither side referred to any authorities that required the Respondents to quantify their claim for damages in their Particulars of Claim. Nor was I referred to any authorities dealing with the power or otherwise of a court to award damages in excess of a figure specified in Particulars of Claim. Counsel said that they had been unable to find any such authority.

94. The Particulars of Claim were served just two weeks or so after the Respondents had been wrongfully evicted. The Respondents simply could not have known at that stage what loss they would suffer from the Appellant’s actions not least because they could not have known at that stage how long they would be kept out of occupation. Nor could they have known what exemplary damages should be awarded at that stage since this depended on matters outside their knowledge. The Judge’s role was to reach an evaluative conclusion on the level of damages that should be awarded in the light of matters that were known, and pleaded, at the time of the trial. I recognise that, in many cases, questions of procedural fairness might well prevent a judge from awarding damages in excess of an amount stated in Particulars of Claim. For example, a defendant may have formulated its defence on an assumption that its exposure to damages was limited and there would be obvious questions of fairness if the “goalposts were moved” during, or indeed after, the trial. However, in the absence of authority I am not prepared to conclude that the Judge simply lacked any power to make an award of the amount he considered appropriate simply because of the statement of value in the Particulars of Claim. CPR 16.3(7) provides that a statement of value in the claim form would not fetter the Judge’s power and I see no principled reason why a similar statement in Particulars of Claim should do so.

95. I therefore approach the matter on the footing that the Judge had power to award the damages that he did, but considerations of procedural fairness could mean that he should not have exercised that power to award more than £100,000 to the Respondents combined. No-one suggests that, in their Particulars of Claim, the Respondents were making any admissions as to the value of their claim which they needed the court’s permission to withdraw under CPR 14.2(11). Rather, I proceed on the basis that, if the point had been identified at the hearing before the Judge, the Respondents would have needed to apply to amend their Particulars of Claim to request damages in a higher amount.

96. The point was not, however, identified at the hearing before the Judge. The Judge cannot be criticised for not spotting the issue himself. In fairness to both the Respondents and the Appellant, neither could have known about the significance of the certificate of value in the Particulars of Claim until the Judge had given judgment on the amount of damages to be awarded. The objection that the Appellant now raises is a new point taken for the first time on appeal. However, I consider it is appropriate to consider it given that it would have been difficult for the Appellant to raise it before the Judge even taking into account the latitude that the Judge gave which I have summarised in paragraph ‎14.iii) above.

97. In my judgment, if the Appellant had identified the point at the hearing before the Judge, the Respondents would have applied successfully to amend their Particulars of Claim. The points made in paragraph ‎94 provided good reasons why the Particulars of Claim contained the limited statement of value. The Appellant’s own obfuscation and indeed refusal to give disclosure deprived the Respondents of some of the means necessary to estimate the value of their claim accurately, particularly in relation to exemplary damages. The prejudice to the Appellant of a late amendment such as this would have been minimal since it was subject to the sanction in the Unless Order. There was no suggestion that the Appellant had taken a deliberate decision to fail to comply with disclosure orders because it was facing a claim for less than £100,000 of damages and any such submission would have been unattractive in any event. A further obvious point in favour of allowing a hypothetical amendment application is that it would involve the Respondents seeking a level of damages that the Judge had determined to be appropriate.

98. Of course, it is not possible to express a definitive conclusion on the outcome of an application to amend Particulars of Claim that was never made. However, the fact that, in my judgment, such an application would, on a balance of probabilities, have succeeded provides a firm pointer away from the conclusion that it was somehow unjust for the Judge to make the award of damages he did. The appeal on Grounds 14 and 15 is dismissed. Grounds 16 and 17

99. The Judge awarded the Respondents their costs on the indemnity basis. By Ground 16, the Appellant asserts that award was “wrongly made”. By Ground 17, the Appellant makes a more specific point that the Judge wrongly took into account, when making his determination, a mere allegation from the Respondents that the Appellant’s director had shouted words of abuse at them in Arabic during a break in the hearing. I can deal with these grounds of appeal briefly as they are hopeless.

100. In his judgment on damages, the Judge said that the conduct of the Appellant throughout the proceedings was “egregious”. In his separate judgment on costs, the Judge correctly directed himself on the appropriate threshold for the award of indemnity costs and concluded that it was amply met. There was an obvious basis for the Judge’s conclusion and, while the Appellant is free to disagree with it, a statement that it was “wrongly made” comes nowhere near showing that the costs award exceeded the generous bounds of the Judge’ discretion.

101. I have no transcript available of the proceedings before the Judge. Mr Marsh-Hyde, who was present at the hearing, said that the insulting nature of the words used by the Appellant’s director was confirmed by the independent translator engaged for the hearing. The Appellant says that it should have been given a “right of reply” but it is difficult to see what that would have achieved given the independent translation that the Judge was given. However, more fundamentally, it was not the abusive language that led to the indemnity costs award, it was the Appellant’s conduct throughout the proceedings. Even if the Appellant’s director had been a model of politeness and respect during the hearing before the Judge, indemnity costs, reflecting the Appellant’s conduct throughout the proceedings, would have been entirely justified. DISPOSITION

102. I have now considered, at some length, the 17 grounds of appeal that the Appellant seeks to advance. Having done so, I too take a step back and consider the Judgment and order as a whole. There is scope for disagreement as to how much financial loss the Respondents suffered from being wrongfully evicted (see paragraph ‎41 above). It is quite possible that a daily rate of £375 for compensation for wrongful eviction was excessive. However, the existence of that possibility does not make the Judge’s overall award of damages perverse, particularly given the circumstances in which he had to perform that evaluation. Moreover, the Judge had concluded that, even applying compensation at £375 per night, exemplary damages were still warranted. He did so in circumstances where the Appellant had deliberately failed to give disclosure on financial benefits obtained from evicting the Respondents unlawfully. Even if the Judge had applied a daily rate lower than £375, it is entirely possible that he would have awarded greater exemplary damages such that the overall award was the same.

103. None of the grounds of appeal have established that any of the Judge’s evaluative conclusions were unavailable. The appeal is dismissed on all grounds except to the limited extent set out in paragraph ‎90 above. I would invite the parties to agree an order to give effect to this judgment.