The respondent is the lessee of flats 11G and 11H at 11-13 Randolph Crescent W9. She and the lessees of the other flats in the Building hold leases granted for 125 years in similar terms, which contain an absolute covenant prohibiting a lessees from cutting into walls or ceilings (clause 2.7). By clause 3.19 of the lease, the landlord (now the appellant) undertook at the request of a lessee, and subject to the payment by the lessee of the landlord’s costs, to enforce certain covenants, including clause 2.7, entered into by the lessees of the other flats. The appellant wished to license works proposed by the tenant of Flat 13 which involving cutting into walls, which would otherwise breach clause 2.7. The respondent sought a declaration that the appellant could not do so as it would put it out of its power to enforce the absolute covenant at the request of a lessee pursuant to clause 3.19.

AM was born in 1987 and is a national of Zimbabwe. He arrived in the UK in 2000 to join his mother, and he was granted indefinite leave to remain in 2004. In 2006, AM was convicted of a number of criminal offences and sentenced to a total of 12 months’ imprisonment. In 2009, AM was convicted of offences relating to possession of a firearm and supply of heroin, and he was sentenced to nine years’ imprisonment. The Secretary of State seeks to deport AM. However, AM is HIV positive. He was placed on the anti-retroviral medication, Eviplera, after having first tried another medication which produced significant side-effects. If AM is deported to Zimbabwe, a range of anti-retroviral medications would be available, but not Eviplera.
At a hearing before the First-tier Tribunal, counsel then appearing for AM relied on AM’s medical condition and the limits on treatment available to him, in addition to the impact of his deportation on his wife and child, to advance a claim based on Article 8 of the European Convention on Human Rights. The First-tier Tribunal dismissed the claim. AM appealed, and the appeal was dismissed by the Upper Tribunal. In the Court of Appeal, AM based his appeal on Article 3, rather than Article 8, of the European Convention on Human Rights. The Court of Appeal dismissed the appeal. AM appealed to the Supreme Court.
Judgment appealed
[2018] EWCA Civ 64