On 7th December the Court of Appeal confronted the issue of principle underlying awards of damages in leasehold flats in the case of Moorjani v. Durban Estates Ltd  EWCA Civ. 1252. Mr Moorjani’s flat was out of repair but, for reasons entirely unconnected with the disrepair, Mr Moorjani was living elsewhere. The trial judge had considered that to be fatal to part of his claim, because he suffered no inconvenience as a result of the disrepair.
Briggs LJ considered that there were two possible conceptual bases for an award of general damages: the impairment of the property right, in which case it did not matter what the tenant did with the flat, and personal distress and inconvenience, where what the tenant did would be crucial.
After reviewing the authorities, such as Calabar v. Stitcher, Wallace v. Manchester City Council and Earle v. Charalambous, he concluded that the loss was impairment of amenity. Discomfort inconvenience and distress were symptoms of the underlying impairment.
This meant that the lack of occupation was not fatal to Mr Moorjani’s claim. At the invitation of Mr Moorjani’s counsel the Court went on to assess damages. Briggs LJ considered that the starting point was the weekly rental value. This was then substantially discounted to 5% of that figure because the disrepair was cosmetic and did not render the flat uninhabitable. That sum was further discounted by half, to 2.5% to reflect the fact that Mr Moorjani had not been in occupation.