…a tenant who is unlawfully evicted perhaps for a relatively short period, is able to achieve some enormous financial reward which is only available to him if he does not accept the offer of reinstatement. There is, of course, a good deal to be said for Mr Carnwath‘s argument, as there always is for Mr Carnwath‘s arguments, but there is no indication in the statute that the tenant does not have that choice. It is difficult to see how you can reinstate a tenant who does not wish to be reinstated. The apparent intention of Parliament is not as unreasonable as it might appear at first when you take into account the fact that, under section 28, to which I will come in a moment, the damages are designed to be equal in amount to the benefit which the landlord gets by having had the tenant removed from the premises, namely the increase in the value to him of the premises. It is therefore quite intelligible that Parliament should have said: ‘well, if the tenant does not choose to go back, at least the landlord shall not benefit by it’…
I turn, therefore, to subsection (7), which provides:
If, in proceedings to enforce a liability arising by virtue of subsection (3) above, it appears to the court —
(a) that, prior to the event which gave rise to the liability, the conduct of the former residential occupier or any person living with him in the premises concerned was such that it is reasonable to mitigate the damages for which the landlord in default would otherwise be liable, or
(b) that, before the proceedings were begun, the landlord in default offered to reinstate the former residential occupier in the premises in question and either it was unreasonable of the former residential occupier to refuse that offer or, if he had obtained alternative accommodation before the offer was made, it would have been unreasonable of him to refuse that offer if he had not obtained that accommodation,
the court may reduce the amount of damages which would otherwise be payable to such amount as it thinks appropriate.
Let me say straightaway that para (a) has no application whatever to this case. No suggestion has ever been made that Miss Tagro‘s conduct was such that it could be criticized and would make it reasonable to mitigate the damage. The two paragraphs seem to me to involve two quite different concepts.
Para (a) is dealing with what one might describe as a contributory negligence concept, although contributory negligence, in the context of an unlawful eviction is clearly not a happy phrase. But it is the idea that in some measure, although not in such measure as in any way to excuse the conduct of the landlord, the tenant has brought the problem on his own head and the paragraph enables the court to mitigate the consequences for the landlord.
Para (b) seems to me to borrow something from the concept of the defence of tender in relation to a debt, a defence which is only available if tender takes place before the proceedings are begun. It is, therefore, necessary to consider what is meant by the phrase ‘before the proceedings were begun’ in para (b). It will be remembered that subsection (7) begins with the words, ‘If, in proceedings to enforce a liability by virtue of subsection (3) above . . .’A further statement made by Lord Wilson in the case of Loveridge v Mayor Burgess of the London Borough of Lambeth  UKSC 65 was relied on and read: Although section 27(3) describes the damages payable to the tenant under section 28 as being in respect of his loss of the right to occupy, it is clear that they are designed to yield to him not the amount of his loss but, exceptionally, the amount of the gain which the landlord would otherwise have achieved by reason of the eviction. At the trial heard on 3 August 2017, the tenant was represented by counsel. Owing to the skeleton argument vehemently opposed the tenants claim, relying on principles relied on derived from the aforementioned legislation and court cases which set precedent, the defendants claim was found to be ill made. The landlord had gained no financial benefit of the alleged unlawful eviction, it was therefore no longer necessary to oppose whether the unlawful eviction actually happened but whether the tenant could be entitled to the amount claimed assuming the unlawful eviction did happen which was a far more easier determination to make in this case. Essentially, the tenant is only entitled to the financial gain the landlord had ascertained by result of the unlawful eviction, in this case the landlord gained no financial benefit. After a lengthy case and changing representatives, the outcome of the trial was more than the landlord could have hoped for, the tenants claim for damages was discontinued after the skeleton argument damaged the tenants claim, the landlord discontinued the counterclaim for rent arrears in exchange for a possession order to be agreed and the tenant agreed. Though the landlord submitted a counterclaim, it was not of a higher value than the tenants claim of £15,000 and therefore the counterclaim did not concern the tenant or his representatives; until it was averred that the assessment of damages for unlawful eviction is to be quantified based on the financial gain of the landlord, and there was no such gain by the landlord in this instance. This case does not suggest by any means that a landlord can unlawfully evict a tenant and so long as there is no financial gain of doing so the landlord is immune from some form of punishment, as such action remains a criminal offence under the Protection from Eviction Act 1977. Author: Mr Sasha Charles