Jiminez v Morrissey and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 31 January 2006
• Neutral Citation: [2006] IEHC 18
• Court: High Court
• Docket Number: [No. 7886 P/2002]
• Date: 31 January 2006

[2006] IEHC 18

THE HIGH COURT

[No. 7886 P/2002]

JIMINEZ v MORRISSEY & ORS

BETWEEN

MANUEL JIMINEZ

PLAINTIFF

AND

DANIEL MORRISSEY, PATRICK J. McGRATH, MARY McGRATH AND THOMAS McGRATH

DEFENDANTS

WALLACE v MANCHESTER CITY COUNCIL TLR 23/7/1998

LANDLORD AND TENANT

Lease

Covenant to repair - Breach of covenant to repair - Liability - Whether disrepair materially affected business - "Materially" - Damages - Wallace v Manchester City Council (Times Law Report, 23/7/1998) followed - No damages awarded - (2002/7886P - O'Neill J - 31/1/2006) [2006] IEHC 18 Jiminez v Morrissey

Facts: the plaintiff leased a restaurant premises from the defendants. The defendant was found by the High Court to be liable for the repair of a flat roof over the premises pursuant to a covenant to repair contained in the lease. Clause 5.4.1 of the Lease, however, restricted the liability of the landlord to the tenant for damage caused by the poor order or condition of the premises provided that it “shall apply only to those parts of the estate the poor order or condition of which would materially affect the carrying on of business in the demised premises…” The plaintiff contended that it had met the threshold for the award of damages set out in the said clause 5.4.1. The defendant denied that the plaintiff had met such threshold.

Held by O’Neill J in dismissing the plaintiff’s claim for damages for consequent damage caused by the poor repair of the roof that before liability could attach to the defendant under the lease, the plaintiff had to show on the balance of probabilities that the poor order or disrepair of the roof materially affected the carrying on of business. In this regard, “materially” meant in a substantial way. In that respect, the clause was clear from its express terms.

Reporter: P.C.

O'Neill J.

1 In this case I delivered judgment on 18th July, 2005 in which I held that the first named defendant was liable pursuant to clause 5.4 of a lease dated 9th December, 1993, between the plaintiff and the first named defendant, in respect of the restaurant premises known as Da Pinos restaurant at the junction of Parliament St. and Cork Hill in the City of Dublin, for the repairs of a flat roof over a wash-up area at the rear of the restaurant premises. The lease in question was for a term of 33 years from the 9th December, 1993 and the initial rent was £40,000 per annum and it is now risen by virtue of reviews to £105.00 per annum. The first named defendant holds his interest in the property on foot of a lease dated 24th June, 1992, from the 2nd 3rd and 4th defendants.

2 The plaintiff's complaint is that since in or about the spring of 1994 there have been persistent leaks through the roof over the wash-up area of the restaurant resulting in water leaking onto the floor in the wash-up area, into the basement toilets beneath the wash-up area and after heavy rain, cascading down the stairs leading from the bin area into a lobby area adjacent to the wash-up area. The plaintiff's evidence was that these leaks have resulted in tiles falling off partition walls, lifting off the floor and the necessity particularly after a heavy nights rain, to place buckets here and there to catch leaks and to place cardboard on the floor to soak up the rainwater and to mop up. In all of this the plaintiff's evidence was supported by that of his wife Mrs. Iris Jimenez. It was the plaintiff's evidence that since 1995 complaints have been made by telephone and later in correspondence about these leaks to the first named defendant.

3 The first named defendant's evidence was that no complaints at all were made concerning leaks until January of 1998 when he received a phone call from Mrs. Jimenez. His evidence was that the first written complaint was received in April of 1998. He said further complaints were received in 1999 but from 1999 until 2001 no complaint whatever was made concerning leaks. He said that in May 2001 he commissioned a report from a firm of engineers and he received this report in late August 2001 and that it revealed a very poor state of repair of the roof. His evidence was that he sent this to the plaintiff and to the second, third and fourth defendants. He said that there then ensued a considerable amount of correspondence concerning who was liable for the repair of this roof. His evidence was that in 2002 he sought to use the opportunity of the development in the adjoining premises, to get the developer to carry out the necessary repair works to the flat roof over the wash-up area. To that end he said a meeting was arranged on the 31st May, 2002, between the architects/engineers representing all interested parties, to decide on the work necessary to effect a solution to the leaking problem. His evidence was and he was not contradicted in this, that the plaintiff or any representative of his did not attend this meeting.

4 In July of 2002, the developer next door went ahead with work to the flat roof which involved clearing away the vegetation that had grown there, together with silt and resurfacing the roof and putting an outlet in a wall to assist drainage. Crucially however no work was done on the flashing around the pipes and ducts which penetrate this roof. As will be seen later the leaks which persisted were by and large the result of defective flashing around these pipes and ducts.

5 I am satisfied that the reason no work was carried out to repair the defective flashings, when the work was being done to the roof in 2002 was because the permission of the plaintiff to interfere with these pipes and ducts was not available. These pipes were essential to the functioning of the restaurant, but to effect necessary repairs to the flashing it was necessary to cut these pipes above and below the roof and to insert new sections with an appropriate aid to flashings attached.

6 As a consequence of the fact that defective flashings were not replaced in this way, leaks have continued at various locations around several of these pipes and ducts.

7 An issue arises as to the seriousness of these leaks and the impact of them on the carrying on of the restaurant business.

8 I am satisfied from the evidence that leaks have existed now for several years at the locations described by Mr. McQuaid. These leaks were shown up in the hose test carried out by him in March of 2005. In addition to these there are two leaks due to two defective cowls over vents in the wash-up area. There also have been other leaks experienced. Up to 2002/2003 there was a leak from a duct which was the property of the Toscana restaurant next door but it would appear that was repaired in 2002 or 2003 resulting in that leak ceasing.

9 The resurfacing of the roof in the bin area appeared, according to the plaintiff's evidence to have stopped substantially the leak coming from that area. This is the leak which was described by the plaintiff and his wife as cascading down the steps into the lobby area.

10 I am not at all satisfied that the effects of these leaks has been as severe as is suggested by the plaintiff and Mrs. Jimenez.

11 I am unable to accept evidence of a cascade of water coming down the steps from the bin area. Even if there was no roof on this area rain would be unlikely to produce the kind of flood described by the plaintiff and Mrs. Jimenez. In any event the plaintiff's evidence suggested that this stopped substantially from 2002 onwards.

12 Insofar as there is a dispute as to when complaints were made about these leaks I prefer the evidence of the first defendant and accept that there were no complaints made until January of 1998 and that between 1999 and 2001 there were no complaints made.

13 At the time when the problem was being addressed in the Summer of 2002, it appears remarkable to me that the plaintiff failed to engage either personally or through his architect or engineer in the devising of a solution.

14 All this suggests to me that the problem was not nearly as bad as is now suggested. It is common case that the leaking problem was only there after rain. Thus in dry weather, which in the city of Dublin is the norm, there would have been no problem. From this I would have been inclined to infer that in the early and mid summer of 2002 the failure of the plaintiff to have engaged in the search for a solution was in all probability due to a disinterest in the issue at that time because it was not troubling him at that time.

15 I am inclined to the view that the evidence of the plaintiff and of Mrs. Jimenez in regard to the severity of the problem is somewhat exaggerated.

16 There is no doubt that there have been several leaks through this roof and that they have been there for several years. As a consequence of these I accept that after rain, water leaks into the wash-up area and onto the floor and it runs down pipes into the staff toilets in the basement area and also that it invades the lobby area.

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