Newman v Framewood Manor Management Co Ltd
Court of Appeal
Citations:  EWCA Civ 159;  1 P&CR DG20.
The appellant was a lessee, while the respondent was her landlord. The appellant alleged that the respondents had breached various covenants associated with her previous lease, including keeping a jacuzzi, common stairways and a gym in working order. The respondent had taken out the jacuzzi and replaced with a sauna, blocked the doorway to the stairs to deal with a condensation issue, and failed to repair the gym.
The respondent relied on an ‘exoneration’ clause which they argued prevented them from being liable for damages for loss of amenity. It applied to any damage caused by ‘the neglect, fault or misconduct of any servant, agent, contractor or workman employed by’ the respondent.
At first instance, the judge rules that:
- The exoneration clause was applicable and prevented recovery of damages for loss of amenity;
- The blocked door was only temporary, so there was no claim for breach of covenant;
- No order for specific performance was available in respect of the covenant to repair the jacuzzi, since it had already been replaced with the sauna;
- The appellant had no claim in respect of the gym, since she rarely used it.
- Was the judge correct to hold that the exoneration clause applied and excluded liability for loss of amenity?
- Was the judge correct to hold that there was no claim for breach with respect to the blocked door?
- Was an order for specific performance available with respect to the jacuzzi?
- Could the appellant make a claim for loss of use of the gym?
The Court of Appeal allowed the appeal on most of the grounds. They held that:
- The exoneration clause did not apply in this case because it only applied where the respondent was being sued vicariously for the actions of their servants. In this case, they were being sued directly for their personal breaches of covenant. In any case, the clause only excluded liability for physical damage – the reference to ‘damage’ did not cover loss of amenity.
- The respondent had intended the door to be permanently blocked, but had changed its mind during trial. This was too late – the claim had to proceed on the basis that the blockage was permanent. The appellant was therefore entitled to damages for loss of amenity.
- The judge was correct not to award specific performance. It would be excessive and disproportionate to require the respondent to take down the sauna and rebuild the jacuzzi, in light of the loss of amenity suffered by the appellant. However, the appellant could recover damages for loss of amenity here.
- The appellant could claim for loss of amenity, as she had sometimes used the gym. Additionally, the reason she had not used it often was because it had been in a state of disrepair for over a year.
This Case is Authority For…
Specific performance will not normally be awarded where it would be disproportionate and excessive to require the defendant to perform the terms of the agreement.