McGlynn v Welwyn Hatfield District Council
Citation: [2009] All ER (D) 26 (Apr)
Alternative citations: [2009] EWCA Civ 285
Hearing date: 1 April 2009
Court: Court of Appeal, Civil Division
Judge: Toulson, Aikens and Sullivan LJJ
Representation: Jan Luba QC and Teresa Starr (instructed by Baxter Webbe) for the tenant. James Findlay QC and James Fieldsend (instructed by Welwyn Hatfield District Council) for the landlord.
Abstract: Housing – Local authority housing. Court of Appeal, Civil Division: The district judge had not been entitled to make a summary order for possession in favour of the local authority landlord as there had been insufficient evidence of nuisance provided by the landlord to enable the judge to conclude that the tenant's defence that he had not committed the nuisance alleged was not seriously arguable.
Keywords: Housing – Local authority housing – Possession order – Non-secure tenancy – Complaints of nuisance made against tenant – Authority landlord serving notice to quit – Entitlement of authority landlord to possession of premises – District judge making summary order for possession – Whether district judge erring.
Summary: The appellant tenant had a non-secure tenancy with the respondent landlord, the local authority. The tenant had problems with drug addiction and was the subject of numerous complaints by his neighbours to the landlord. As a result of the complaints, on 30 April 2004, the landlord decided to serve a notice to quit on the tenant, requiring the return of the keys to the property by 10 May. As a result of intervention by a registered charity, from whom the tenant was seeking help with his substance misuse, the landlord wrote to the tenant, on 2 June, stating that it would consider granting him a further non-secure tenancy with an option of being re-housed in a smaller property on the condition that no further complaints of anti-social behaviour were received.
In that letter, the landlord also stated that it did not take action against a person's tenancy unless it was satisfied that there had been a significant breach that had caused a nuisance or annoyance to other residents in the locality. Between July 2004 and April 2005, the landlord received more complaints about the tenant. The landlord sought possession of the property on the basis that the tenant had breached the express terms of the non-secure tenancy in respect of the avoidance of nuisance.
The landlord later changed its stance to rely on the fact that a valid notice to quit had been served. The district judge, considering himself bound by case authority, made the possession order.
Subsequently, that order was set aside and the matter was remitted to the district judge for reconsideration of whether the tenant had a seriously arguable public law defence to the claim for possession. The tenant admitted service of the notice to quit but denied all allegations of nuisance and applied for relief including the grant of a further tenancy of the property with an option of being re-housed in a smaller property. At the remitted hearing, the district judge found that the tenant's defence was not seriously arguable and he made a summary order for possession. The tenant appealed.
He submitted, inter alia, that the district judge had failed to give adequate reasons for finding that his case was not seriously arguable.
The appeal would be allowed.
The district judge had taken an overly narrow view of the significance of the landlord's letter containing the statement of policy that it did not take action against a person's tenancy unless it was satisfied that there had been a significant breach that had caused a nuisance or annoyance to other residents in the locality. In view of the lapse of time after service of the notice to quit and before the issue of possession proceedings, it was seriously arguable that a reasonable local authority landlord would not have issued the proceedings the landlord had, unless satisfied that there had been some significant further breach by the tenant. In the instant case, the paucity of information available to the district judge about the landlord's decision making process led to the conclusion that he had been wrong to conclude that the tenant's defence was not seriously arguable (see [53], [54], and [57] of the judgment).
Lambeth London Borough Council v Kay; Price v Leeds City Council [2006] UKHL 10 considered; Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2008] UKHL 57 considered.
Gareth Williams, Barrister
Published date: 02/04/2009
*Myerson v Myerson
Citation: [2009] All ER (D) 05 (Apr)
Alternative citations: [2009] EWCA Civ 282
Hearing date: 1 April 2009
Court: Court of Appeal, Civil Division
Judge: Thorpe, Smith and Sullivan LJJ
Representation: Martin Pointer QC, Justin Warshaw and James Ewins (instructed by Mills & Reeve LLP) for the husband.Nicholas Mostyn QC and Simon Webster (instructed by Sears Tooth) for the wife.
Abstract: Divorce – Financial provision. Court of Appeal, Civil Division: The natural processes of price fluctuation, whether in houses, shares, or any other property, however dramatic, did not enable the court to exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of 'new events'.
Keywords: Divorce – Financial provision – Variation of order – Appeal – Assets of husband and wife divided by consent order – Parties agreeing wife's portion of assets to be 43% and husband's 57% - Wife's portion to be paid in cash instalments – Husband's assets largely consisting of shares – Share price falling as result of global economic situation – Husband appealing out of time against order – Husband submitting wife's portion now representing 105.2% of assets – Whether circumstances constituting 'new events' enabling court to exercise discretion to grant leave to appeal out of time – Whether consent order unfair and unworkable in light of new events.
Summary: The claimant husband was, and remained, a fund manager operating through a company quoted on the AIM Exchange, Principle Capital Holdings Limited (PCH). Following his divorce from the respondent wife, an ancillary relief application was compromised. The compromise was reflected in a consent order perfected in March 2008 (the order). Of the assets, then valued at £25.8m, it was agreed that the wife would receive £11m (43%), and the husband would retain £14.5m (57%). £9.5m of the wife's portion would be provided in cash, with £7m payable in April 2007 and the remainder to be paid in four equal, annual instalments.
The husband's assets consisted of a very substantial share holding in PCH and various properties. At the time of the order, shares in PCH were quoted at £2.77½. In April 2008, when the husband paid the first instalment of £7m to the wife, the share price was £2.65. In July, it had fallen to £2.00 and, by November 2008, it stood at £1.40. The husband issued applications seeking, inter alia, the variation of the order for the payment of the lump sum by instalments. That application was subsequently listed for hearing in July 2009. Meanwhile, in December 2008, when the PCH share price was just £0.72, the husband sought to appeal the order. The court granted leave and proceeded to hear the appeal.
He submitted that forces within the global economy and the collapse in the PCH share price had rendered the order both unfair and unworkable, such that the fundamental assumption upon which it had been made, namely, that the overall division of assets was fair and that compliance with the terms of the order was practicable, had been destroyed. In support of that submission, he stated that his net position at the time of the instant hearing was minus £539,000, while that of the wife was, approximately, plus £11m.
The wife, however, contended that: (i) factors beyond the mere share price had to be considered, such as the husband's willingness to take the majority of his 57% share of the available assets in PCH shares, when he had an unrivalled view of that company's future prospects at a time when the share price had been falling steadily for three months; (ii) it had been the husband's decision to pay her a fixed sum, albeit by instalments; (iii) in the light of the husband's pending application to vary the order, the instant appeal was superfluous since, on the facts, it could not possibly lead to a more favourable outcome for the husband than that which the judge below would have the jurisdiction to order were the application to succeed; (iv) the husband's appeal would open the floodgates to a range of similar cases; and (v) the history of the case did not reveal any specific event or events constituting a 'new event' such that the court, acting in accordance with the relevant authorities, could exercise its discretion to grant leave to appeal out of time.
The appeal would be dismissed.
(1) The identification of some concrete new event, such as the liquidation of the company, was not required for the court properly to be able to exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events (see [37] of the judgment).
Such a requirement would be to put too narrow an interpretation of the definition of 'new events' in the relevant case law; 'events' in that context embraced happenings, developments or occurrences (see [37] of the judgment).
Barder v Caluori [1987] 2 All ER 440 applied.
(2) The application of settled principles clearly pointed to the dismissal of the husband's appeal. That conclusion was strengthened by a number of additional factors. First, the husband, with all knowledge both public and private, had agreed to an asset division which left him captain of the ship, certain to keep for himself whatever profits or gains his enterprise and experience would achieve in the years ahead. Second, he had clearly taken a speculative position in compromising his wife's claims; there was no reason why the court should subsequently relieve him of the consequences of his speculation by re-writing the bargain at his behest.
Thirdly, he continued to enjoy control of the opportunities that went with that bargain. Finally, because the payment of the lump sum was spread over five instalments, the statutory power of variation existed, and had been invoked. If the circumstances justified the reopening of the order, then it would be within the court's jurisdiction to rewrite that part of it. Given that the outstanding instalments amounted to £2.5m, much more than token relief was there, albeit subject to the exercise of the judicial discretion (see [31]-[36] of the judgment).
Barder v Caluori [1987] 2 All ER 440 applied; Cornick v Cornick [1994] 2 FLR 530 applied.
Per curiam: There may be many who are contemplating an attempt to reopen an existing ancillary relief order on the grounds of subsequently encountered financial eclipse. All in that situation should ponder the analytical characterisation contained in the authorities and ask themselves whether the events upon which they intend to rely can be bought within the categories therein set out. Even then they would be well advised to heed the warning that very few successful applications have been reported. The natural processes of price fluctuation, whether in houses, shares, or any other property, and however dramatic, do not satisfy the test to be applied.
Alison Pryor, Barrister
Published date: 01/04/2009
Country Estates Construction Ltd v Oxfordshire County Council
Citation: [2009] All ER (D) 306 (Mar)
Alternative citations: [2009] EWHC 642 (Ch)
Hearing date: 27 March 2009
Court: Chancery Division
Judge: Judge Toulmin QC sitting as a judge of the High Court
Representation: Gary Cowen (instructed by Clifton Ingram LLP) for the claimant.Wayne Clark (instructed by Oxfordshire County Council Legal Services) for the defendant.
Abstract: Town and country planning – Permission for development. Chancery Division: The proposed construction of a cycle path and pedestrian link by the defendant county council was in breach of a clause in the transfer of sale between it and the claimant development company, as the clause had to be construed in the context of an earlier grant of planning permission which contained a condition that the relevant strip of land was to be reserved solely for landscaping.
Keywords: Town and country planning - Permission for development - Condition - Defendant county council selling land with planning permission to claimant development company - Defendant retaining some of original land - Defendant covenanting with claimant to maintain landscaping on retained land in accordance with planning permission - Defendant proposing construction of cycle way and path on retained land - Whether proposal breaching covenant.
Summary: In February 1987, Oxford County Council (the defendant) made a planning application to the local planning authority in respect of a parcel of land adjoining the A361 Banbury Road (the land). The purpose of the application was to provide a new access to the A361, a footway, and adequate landscaping and screening for a new development. The application was granted on 22 May 1987. Condition 5 of the planning permission stated: 'apart from the means of access into the site a strip of land with a minimum width of 10m be reserved solely for landscaping along all boundaries of the application area'.
The purpose of the condition was to ensure that the development was complimented by adequate landscaping. Condition 7 was also imposed to ensure that the development was complimented by adequate landscaping. The purpose of condition 9 was to define the boundary of the planning land and to protect the agricultural land. In 1988, the defendant proposed to sell the land and issued particulars of sale for a sale by formal tender.
The particulars stated that outline planning permission had been granted for a development. An addendum to the particulars stated that, in relation to what were described as landscaping strips, the defendant would provide and retain the planting, to a high environmental standard, along the south, south-eastern and eastern boundaries of the development. The particulars of sale also contained a condition which stated that the property would be sold with the benefit of a covenant of the vendor to provide and maintain landscaping on land retained by the defendant in accordance with the planning permission of 22 May 1987. The land was sold to the claimant company on 22 August 1988.
The transfer defined the defendant's 'retained land' as land adjoining the property sold. Clause 4 of the transfer stated that the defendant: 'hereby covenants with the purchaser and its successors in title in respect of the property [..] that the Council will provide and maintain landscaping on the Council's Retained Land in accordance with the planning permission issued [..] on 22 May 1987'. In April 1989, planning permission was granted for the erection of 33 industrial/office units by the claimant on the site.
By then continuous fencing had been provided on the landscaping strip. In February 2008, the local planning authority resolved to grant planning permission to the defendant for the construction of a cycle path and pedestrian access from the claimant's industrial estate to a proposed new development to the south of the claimant's land. The claimant contended that the proposal would breach the covenant to maintain the landscaping scheme imposed by the planning authority in May 1987. The master ordered that it be tried as a preliminary issue whether on a true construction of the terms of the transfer, the proposed cycle path and pedestrian link or the removal or destruction of any part of the landscaping strip on the defendant's retained land constituted a breach of clause 4 of the transfer.
The claimant submitted that (i) 'maintain' in clause 4 meant maintain in existence in its entirety for all time; and (ii) the defendant's proposed actions in breaching the covenant would not be de minimis. The defendant contended, inter alia, that (i) clause 4 of the transfer had to construed in the context of conditions 5 and 7, and the reason for those conditions was to ensure that development was completed by adequate landscaping; the defendant's proposals allowed for adequate landscaping; (ii) landscaping did not prevent a path being created through the landscape; and (iii) 'maintain' properly construed in context meant 'generally to maintain landscaping as a feature'.
The court ruled:
Clause 4 of the transfer had to be read in the context of a planning permission whose stated purpose had been not only to provide adequate landscaping but also to define the boundary of the development and to protect the agricultural land to the south. That required adequate landscaping along the whole of the relevant boundary of the claimant's land to be provided by the defendant. That interpretation reinforced the construction of the words of condition 5 that the strip of land was to reserved solely for landscaping.
The provision of a cycle track and pathway would plainly be a contravention of that condition and would also be a material change in that it would alter the environment and the purpose of the landscaping which was to provide landscaping to a high environmental standard and to protect the agricultural land. There was nothing in the surrounding circumstances to alter those conclusions on construction. Accordingly, on a true construction of the terms of transfer, the creation of a cycle path and pedestrian link would constitute a breach of clause 4 of the transfer (see [91], [93], [105], [106] of the judgment).
The defendant would give an undertaking not to proceed with the plan to create the cycle path and pedestrian link.
Alison Blood, Barrister
Published date: 01/04/2009
Hughes v Borodex Limited
Citation: [2009] All ER (D) 15 (Apr)
Alternative citations: [2009] EWHC 565 (Admin)
Hearing date: 25 March 2009
Court: Queen's Bench Division, Administrative Court
Judge: Collins J
Representation: Victoria Williams (instructed by David Tagg & Co) for the appellant.Christopher Heather (instructed by Forsters) for the respondent.
Abstract: Appeal – Rent assessment committee. Queen's Bench Division, Administrative Court: An appeal against a decision of the Rent Assessment Committee on the ground that improvements which had been made to the property in question should have been regarded when assessing the rent payable was dismissed.
Keywords: Appeal – Rent assessment committee – Determination of fair rent – Appellant appealing against decision of committee on ground that it had not considered improvements she had made to property - Committee deciding rent affecting appellant's assured status - Whether appellant could require addition or alteration of wording of relevant statutory provisions in order to keep assured status - Housing Act 1988, ss 13(4), 14(3)(b) - Local Government and Housing Act 1989, section 11(6) and (7).
Summary: Section 14 of the Housing Act 1988, so far as material, provides: ' (2) In making a determination under this section, there shall be disregarded [..] (b) any increase in the value of the dwelling-house attributable to a relevant improvement carried out by a person who at the time it was carried out was the tenant, if the improvement -- (i) was carried out otherwise than in pursuance of an obligation to his immediate landlord [..] (3) For the purposes of subsection (2)(b) above, in relation to a notice which is referred by a tenant as mentioned in subsection (1) above, an improvement is a relevant improvement if either it was carried out during the tenancy to which the notice relates or the following conditions are satisfied, namely -- (a) that it was carried out not more than twenty-one years before the date of service of the notice; and (b) that, at all times during the period beginning when the improvement was carried out and ending on the date of service of the notice, the dwelling-house has been let under an assured tenancy [..] '
Section 11 of the Local Government and Housing Act 1989, so far as material, provides: ' (6) Subsections (2), [(3A),] (4) and (5) of section 14 of the 1988 Act shall apply in relation to a determination of rent under sub-paragraph (5) above as they apply in relation to a determination under that section subject to the modifications in sub-paragraph (7) below; and in this paragraph 'rent' shall be construed in accordance with subsection (4) of that section. (7) The modifications of section 14 of the 1988 Act referred to in sub-paragraph (6) above are that in subsection (2), the reference in paragraph (b) to a relevant improvement being carried out shall be construed as a reference to an improvement being carried out during the long residential tenancy and the reference in paragraph (c) to a failure to comply with any term of the tenancy shall be construed as a reference to a failure to comply with any term of the long residential tenancy [..] '
The appellant was an assured periodic tenant of a property by virtue of section 186 of the Local Government and Housing Act 1989 (the 1989 Act). She had, for a number of years, carried out improvement works on the property; works which had not been required by the landlord. So long as she remained an assured tenant, it was common ground that she was entitled to the protection provided by the Housing Act 1988 (1988 Act), which included security of tenure and the right to apply to a Rent Assessment Committee to fix the rent.
The respondent served a notice which brought the long tenancy to an end and proposed a new assured tenancy to commence in February 2004. Agreement on the rent payable was not achieved, which led to the appellant referring the landlord's notice of increase to a Rent Assessment Committee (the committee). The committee determined the rent payable for the flat to be £2,340 per month pursuant to section 14(3)(b) of the 1988 Act. By that determination, the rent payable by the appellant exceeded the sum of £25,000 per annum, which consequently meant that the appellant would no longer retain her assured status under paragraph 2 of schedule 1 to the 1988 Act. The appellant appealed.
The appellant submitted that to construe the provisions in the way that the committee had done was contrary to the purpose of the statutory provisions which were designed, as section 186 of the 1989 Act stated, to give security to those whose long tenancies had come to an end. The absence from the 1989 Act of provisions which gave an equivalent protection to those who had been tenants under a long tenancy as if they had been assured tenants throughout was an oversight and it was open to the judge to construe the provisions overall by reading in words which provided that protection. She also contended that the 1954 Act, which was repealed, provided protection which was wider in that there was no 21 years or other limit and there was no reason to believe that Parliament had intended in 1989 to remove protections and so security which existed. The whole purpose of schedule 10 was to maintain security and not to reduce it.
The appeal would be dismissed.
On the authorities, a submission that the court should not apply the unambiguous provisions of an Act, but should write in words to achieve the supposed purpose of those provisions was one which would rarely prevail and then only in a clear case. The power would normally only be exercised to prevent a provision being unintelligible, absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the statute (see [14] and [15] of the judgment).
In the instant case, while considerable sympathy could be afforded to the appellant, the provisions could not be altered in her favour. The application had been made under section 13(4) of the 1988 Act. Hence, schedule 10 of the 1989 Act had no application. Accordingly, the appellant could not have taken advantage of the provisions of paragraphs 11(6) and (7) of the 1989 Act since they did not affect her application (see [18] of the judgment).
Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 All ER (Comm) 674 applied; East Coast Amusement Co Ltd v British Transport Board [1965] AC 58 considered; Smith's (Henry) Charity Trustees v Hemmings [1983] 1 EGLR 94 considered; R (on the application of Morris) v London Rent Assessment Committee [2002] All ER (D) 75 (Mar) considered.
Avneet Baryan, Barrister
Published date: 01/04/2009
*Alexander-David v Mayor and Burgesses of the London Borough of Hammersmith and Fulham
Citation: [2009] All ER (D) 17 (Apr)
Alternative Citations: [2009] EWCA Civ 259
Hearing date: 1 April 2009
Court: Court of Appeal, Civil Division
Judge: Waller, Scott Baker and Sullivan LJJ
Representation: Kelvin Rutledge (instructed by Michael Cogher) for the authority. Kerry Bretherton (instructed by Duncan Lewis & Co) for the defendant.
Abstract: Landlord and tenant – Tenancy. Court of Appeal, Civil Division: Where a local housing authority had served a notice to quit on the defendant, then aged 17, and had commenced possession proceedings against her, the district judge had erred in making a possession order since, inter alia, the service of the notice to quit on the defendant had not been sufficient to terminate the tenancy. Moreover, schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 applied to the tenancy granted to the defendant.
Keywords: Landlord and tenant – Tenancy – Agreement – Claimant local housing authority granting minor tenancy of premises – Authority subsequently serving notice to quit and commencing possession proceedings – Judge ordering defendant to give up possession – Whether authority holding premises on trust for minor – Whether authority wrong to serve notice to quit – Whether judge erring – Law of Property Act 1925 – Housing Act 1985 – Trusts of Land and Appointment of Trustees Act 1996, schedule 1.
Summary: Schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996, so far as material, provides: '(1) Where after the commencement of this Act a person purports to convey a legal estate in land to a minor, or two or more minors, alone, the conveyance -- (a) is not effective to pass the legal estate, but (b) operates as a declaration that the land is held in trust for the minor or minors (or if he purports to convey it to the minor or minors in trust for any persons, for those persons). (2) Where after the commencement of this Act a person purports to convey a legal estate in land to -- (a) a minor or two or more minors, and (b) another person who is, or other persons who are, of full age, the conveyance operates to vest the land in the other person or persons in trust for the minor or minors and the other person or persons (or if he purports to convey it to them in trust for any persons, for those persons). (3) Where immediately before the commencement of this Act a conveyance is operating (by virtue of section 27 of the Settled Land Act 1925) as an agreement to execute a settlement in favour of a minor or minors -- (a) the agreement ceases to have effect on the commencement of this Act, and (b) the conveyance subsequently operates instead as a declaration that the land is held in trust for the minor or minors.'
The defendant applied to the claimant local housing authority for accommodation under part 7 of the Housing Act 1996, when she was aged 16. The authority accepted that it had a duty under section 193(2) of the 1996 Act to secure that accommodation was available for her. On 25 June 2006, it discharged that duty by entering into an agreement with her, which gave her a tenancy of the premises (the agreement). The agreement referred to the parties to the agreement as 'the landlord' and 'the tenant', respectively.
The defendant moved into the premises. The following year, one of the authority's housing officers wrote to the defendant about various complaints that had been received from other residents. Those complaints were not resolved and consequently, the authority decided to terminate the agreement and recover possession. On 14 September 2007, the authority served a notice to quit addressed to the defendant by placing the notice through the letterbox at the premises in accordance with clause 2 of the agreement. Possession proceedings were commenced by the authority. By the time a formal defence was served the defendant had ceased to be a minor. The district judge struck out the defence and ordered the claimant to give up possession of the premises. The defendant appealed against the district judge's decision.
She submitted that: (i) in entering into its standard form tenancy agreement with her, the authority had purported to grant her a legal estate with the consequence that, in accordance with paragraph 1(1) of schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), the agreement had not been effective to grant her a legal tenancy, and operated as a declaration by the authority that it held the premises on trust for her; and (ii) as a trustee holding the premises on her behalf, the authority could not serve a notice to quit. She therefore submitted that the district judge had had no jurisdiction to make the order for possession. Consideration was given to the Law of Property Act 1925 and the Housing Act 1985.
The appeal would be allowed.
(1) A declaration by an authority that it held its property on trust for a third party would, at least arguably, be a disposal of that property for the purposes of section 32 of the 1985 Act. Authorities might, in principle, grant tenancies to minors that were effective in equity. A landlord who had full capacity to grant a legal tenancy, and who granted a tenancy without any express qualification to the effect that something less than a legal tenancy was being granted, could not subsequently say that what he had granted was not a legal tenancy, but an equitable tenancy. A landlord did not elect to grant an equitable tenancy; such a tenancy arose in specified circumstances, recognised by equity (see [19], [22] and [30] of the judgment).
The 1925 Act did not prohibit the grant by the authority of a legal estate to the defendant, it merely prevented her from holding such an estate. The authority had entered into one of its standard form tenancy agreements with the defendant which would normally be construed as the grant of a legal estate in the premises. The agreement between the defendant and the authority had been in the authority's standard form for creating legal tenancies with its adult tenants. If the agreement had referred to a trustee, that would have been a clear indication that the authority had not been purporting to convey a legal estate. There would therefore be no need for TOLATA to declare that the agreement was to 'operate as a declaration that the land is held in trust' because the agreement in referring to a trustee would itself have included such a declaration. In all the circumstances, schedule 1 to TOLATA applied to the tenancy that had been granted to the defendant (see [16], [24]-[26] and [30] of the judgment).
Kingston upon Thames Royal London Borough Council v Prince (1993) 31 HLR 794 considered.
(2) Describing an agreement as an agreement to grant a licence would not suffice to avoid the creation of a tenancy if an authority allowed an applicant to have exclusive possession of residential premises for a term, and did not provide any attention or services (see [37] of the judgment).
In the instant case, since the authority had held on trust for the defendant the property for a long period, it could not lawfully destroy the subject matter of the trust by serving notice to quit on her. The authority had been both the lessor and trustee. In those circumstances, the service of the notice to quit only on the minor beneficiary of the trust had not been sufficient to terminate the tenancy that had been held by the authority as trustee on the defendant's behalf (see [31] and [35] of the judgment).
Street v Mountford [1985] 2 All ER 289 considered.
Per Curiam: It is important that the inability of a minor to hold a legal estate is expressly recognised, and that any agreement with a 16 or 17-year-old expressly states that because the applicant is a minor the authority is not granting a legal estate but is instead securing that accommodation is available by granting something other than such an estate.
Jade Campbell, Barrister
Published date: 01/04/2009
R (on the application of Smith) v Land Registry
Citation: [2009] All ER (D) 208 (Mar)
Alternative citations: [2009] EWHC 328 (Admin)
Hearing date: 13 February 2009
Court: Queen's Bench Division, Administrative Court
Judge: Judge Pelling QC sitting as a judge of the High Court
Representation: David Watkinson (instructed by Community Law Partnership) for the claimant. James Strachan (instructed by the Treasury Solicitor) for the defendant.
Abstract: Land registration – Acquisition of land by possession. Queen's Bench Division, Administrative Court: The court ruled that the decision of the Assistant Land Registrar for the defendant Land Registry to reject the claimant's application for first registration of title by way of adverse possession in respect of land which the local planning authority had claimed formed part of a public highway was correct having regard to the authorities on the matter. The court stated that the legal point which had been raised by the claimant was 'simply not arguable' but not, as the defendant had claimed, academic.
Keywords: Land registration – Acquisition of land by possession – Adverse possession – Claimant submitting application for first registration of title in respect of land lived on for more than 12 years – Highway authority arguing land forming part of public highway to which adverse possession could not be claimed – Registrar from defendant Land Registry rejecting application – Claimant raising legal point on adverse possession of highways – Defendant arguing claimant's point academic – Whether registrar correct to reject application - Whether point raised academic.
Summary: On an unspecified date, the claimant submitted an application for first registration of title in respect of land in Willingham, England (the land). The claimant claimed title by adverse possession on the basis that his caravan and associated structures had been on the land for an excess of 12 years before the application was made. The application was opposed by the highway authority; its view having been that the land formed part of a public highway which was open to all forms of traffic. By letter dated 25 July 2007, the Assistant Land Registrar on behalf of the defendant Land Registry rejected the application on two bases, namely: (i) that the land was a public highway to which adverse title could not be claimed; and (ii) that the evidence was not sufficient to establish an 'intention to possess' the land or adverse possession of the land (see [2] of the judgment). The claimant applied for judicial review, seeking to challenge (i) only.
The defendant contended that the claimant's decision to limit the challenge to (i) only amounted to the raising of an academic point which should of itself lead to the dismissal of the application or, alternatively, the refusal of a remedy. Consideration was given to numerous authorities, but in particular the statement of principle which was established by Joyce J in Harvey v Truro RDC (see (1903) 1 LGR 758), the dictum of Mummery LJ in Bromley London Borough Council v Morritt (see (1999) 79 P & CR 536), and the assumption made by Swinfen Eady J in St Ives Corpn v Wadsworth (see (1908) 6 LGR 306).
The application would be dismissed.
The claimant's argument which in effect was that on the appropriate facts, such as those in the instant case, a highway could be extinguished by adverse possession was simply not arguable. The statement of principle established by Joyce J in Harvey was correct, as was the assumption that had been made by Swinfen Eady J in St Ives and the dictum of Mummery LJ in Morritt at any rate in relation to a contention that a possessory title had been obtained which had the effect of extinguishing some or all of a public highway. In relation to the defendant's contention that the claimant's argument was academic, that was wrong. The legal point raised by the claimant required resolution for two reasons - in each case the same legal point could arise - first, a renewed application to the defendant might be made, and, secondly, the authority might wish to seek possession of the land or remove the caravan and associated structures from it and/or prosecute for obstruction (see [19]-[21] of the judgment).
It followed, in those circumstances, that the decision under challenge would stand.
Harvey v Truro RDC (1903) 1 LGR 758 applied; St Ives Corpn v Wadsworth (1908) 6 LGR 306 applied; Bromley London Borough Council v Morritt (1999) 79 P & CR 536 applied; Turner v Ringwood Highway Board (1870) LR 9 Eq 418 considered; J A Pye (Oxford) Ltd v Graham [2002] 3 All ER 865 considered; Bakewell Management Ltd v Brandwood [2004] 2 All ER 305 considered.
Robert Chan, Barrister
Published date: 31/03/2009
Bracknell Forest Borough Council v Green and another
Citation: [2009] All ER (D) 211 (Mar)
Alternative citations: [2009] EWCA Civ 238
Hearing date: 20 March 2009
Court: Court of Appeal, Civil Division
Judge: Mummery, Lawrence Collins and Rimer LJJ
Representation: David Carter and Toby Vanhegan (instructed by Alex Jack, Corporate Legal Services, Bracknell) for the authority. Jan Luba QC and Paul Diamond (instructed by Chambers Solicitors, Slough) for the first respondent.
Abstract: Landlord and tenant – Recovery of possession. Court of Appeal, Civil Division: The recorder had taken the availability of suitable accommodation into account as a relevant consideration when he decided that it was not reasonable to make an order for possession against a 50-year-old respondent who had lived in the property in question all his life.
Keywords: Landlord and tenant – Recovery of possession – Order for possession – 50-year-old tenant living in same three-bedroom house all his life – Tenant's sister also living in property since 1984 – Landlord local authority seeking order for possession on basis accommodation afforded more extensive than reasonably required – Judge holding not reasonable to make possession order – Whether judge erring – Whether judge misdirected himself in application of relevant law – Housing Act 1985, section 84, schedule 2, part III.
Summary: Section 84 of the Housing Act 1985 provides, so far as material: '(1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2. (2) The court shall not make an order for possession-- [..] (c) on the grounds set out in Part III of that Schedule (grounds 12 to 16), unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect; [..] '
Part III of schedule 2 to the Housing Act 1985 provides, so far as material: 'Grounds on which the Court may Order Possession if it Considers it Reasonable and Suitable Alternative Accommodation is Available [..] Ground 16 The accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant [..] The matters to be taken into account by the court in determining whether it is reasonable to make an order on this ground include-- (a) the age of the tenant, (b) the period during which the tenant has occupied the dwelling-house as his only or principal home, and (c) any financial or other support given by the tenant to the previous tenant.'
The respondent was born in 1959 and had lived in the same semi-detached three-bedroom house (the property) all his life.
Since 1984, his sister, the second respondent in the instant proceedings, had also lived there with him. The property had originally been let to his father by the predecessors-in-title to the claimant local authority. The tenancy became a secure tenancy under the provisions of the Housing Act 1985. The respondent succeeded to that tenancy in 2005. In 2006, the local authority served a notice on the respondent seeking possession of the property on ground 16 of schedule 2 to the 1985 Act, on the basis that the accommodation was more extensive than was reasonably required by the respondent. Possession proceedings were commenced and a hearing took place in January 2008. The recorder made the following findings, inter alia, at that hearing: (i) the accommodation was more extensive than that reasonably required by the respondent; (ii) four alternative properties had been offered to the respondent and his sister, but they had declined to view them; and (iii) one of those properties was 'suitable'.
The recorder then stated that: 'There is no point in discussing this issue [suitability] until first the issue of reasonableness has been decided. Plainly if it is unreasonable to make a possession order it is immaterial whether suitable alternative accommodation is available.' Having gone on to conduct a balancing exercise, weighing the reasons why the local authority wanted possession against the reasons why the respondent wanted to stay with his sister in the property, the recorder concluded, inter alia, that the property provided the respondent and his sister 'with a profound sense of security' and that forcing them out of the property would 'permanently destabilise' them. Finding that, on balance, such destabilisation was not acceptable, he concluded that on the unusual facts of the case it was not reasonable to make a possession order. The local authority appealed.
It submitted that: (i) the recorder had given insufficient weight to the factors relied on by the authority in support of its application; and (ii) the recorder had misdirected himself by wrongly excluding the availability of suitable accommodation from his consideration whether it was reasonable to make a possession order.
The appeal would be dismissed.
In general, an appeal court should not be overcritical of the lack of detailed discussion in the judgment of the lower court. The appeal process was not there merely for having another go at the kind of fact-based issue that the lower court was often better placed to assess than a law-oriented appellate court (see [29]-[30] of the judgment).
In the instant case, the court would be slow to upset the recorder's evaluation of reasonableness on the possession order issue, unless it was clear that he had acted under an error of principle or his decision was obviously wrong. The real issue was whether the recorder had taken the availability of suitable accommodation into account as a relevant consideration when he decided that it was not reasonable to make an order for possession.
If he had, that was the end of the matter and there had been no need for him to re-visit suitable accommodation specifically. From the judgment as a whole, it was clear he had had that matter well in mind throughout his consideration of the local authority's claim and had given it proper consideration before deciding to refuse the application for a possession order. Taking into account all the factors relevant to the reasonableness of making a possession order, he had been entitled to conclude on the facts of the instant case that the combination of factors relied on by the local authority, including the offer of suitable accommodation, was outweighed by the length of the respondent's occupation of the property, his personal and family circumstances, his age and the permanently destabilising effect of a possession order on him.
Moreover, the terms of the 1985 Act expressly contemplated cases in which the tenant's personal circumstances, such as, in the instant case, the respondent's age and unusually long period of occupation, could outweigh the pressures on public housing and other factors. The facts were, as the recorder had said, unusual, and in all the circumstances one could readily appreciate why he had decided that it was not reasonable to make a possession order against the respondent (see [30], [33]-[35] and [37] of the judgment).
Alison Pryor, Barrister
Published date: 26/03/2009
Primary Health Care Centres (Broadford) Ltd v Ravangave and others
Citation: 2009 Scot (D) 16/4
Alternative citations: [2009] CSOH 46
Hearing date: 26 March 2009
Court: Outer House, Court of Session
Judge: Lord Hodge
Representation: Munro (instructed by Shepherd & Wedderburn LLP) for the pursuers. Sandison (instructed by Brodies LLP) for the first defender. Beynon (instructed by Balfour + Manson LLP) for the second defender.
Abstract: Civil procedure – Res Judicata. Court of Session: In an action in which the pursuers sought declarator that three medical practitioner and former partners were jointly and severally liable for the tenant's obligations under a lease, the court held that the first and second defenders' plea of res judicata succeeded, decree of absolvitor having been granted in the pursuers' earlier action seeking the same declarator against them.
Keywords: Civil procedure – Res judicata – Pursuers raising action seeking declarator that first and second defenders jointly and severally liable for tenant's obligations under lease – Court granting decree of absolvitor – Pursuers subsequently raising second action seeking same declarator against first, second and third defenders – First and second defenders raising plea of res judicata – Whether plea applicable.
Summary: This was an action by the landlords of heritable property in the Isle of Skye known as the Broadford Medical Centre ('the subjects'), against general medical practitioners who were formerly partners in a partnership known as the Broadford Medical Practice. The pursuers sought declarator that the defenders were jointly and severally liable for all the tenant's obligations under the lease of the subjects. This was the second action the pursuers had raised against Dr R and Dr T, the first and second defenders, seeking declarator that they were bound by the terms of the lease. The first action resulted in decree of absolvitor. In this action Dr R and Dr T pleaded res judicata.
The court heard a debate on the scope and application of that defence. At a procedural hearing before the debate, counsel for Dr H, the third defender, intimated to the court that he did not contest the declarator.
The factual background was that Dr H owned the subjects. He practised as a GP in partnership with Dr R and the subjects were their surgery. In about 2000 Dr H leased the subjects to the pursuers. They in turn let them to Dr H and Dr R as the partners of and trustees for the partnership, and their permitted successors and assignees. The lease was for 33 years from November 2000. Clause 1.3(j) provided that the obligations of the tenant would be binding jointly and severally not only on the partners of the firm when the lease was entered into but also on all persons who in future became partners.
It also provided that those obligations would subsist notwithstanding any changes in the constitution of the partnership by the assumption of new partners or the retiral, death or withdrawal of any partner, and that the pursuers would grant a discharge from joint and several liability under the lease to a partner who withdrew from the continuing partnership, obtainable on the written application of that partner or his executors so long as there remained a partnership of two or more persons. On 19 November 2001 Dr T joined the partnership as a partner. The defenders entered into a partnership agreement dated 13 November 2001.
In that agreement Dr T acknowledged that she was liable along with the other partners to implement the obligations of the partnership under the lease. The pursuers in this action averred, and the defenders admitted, that the partnership ended on 30 September 2002. The dissolution of the partnership arose out of a change in the way in which the National Health Service provided GP's services to the public. Until 30 September 2002 such services were provided in Broadford through the partnership.
From 1 October 2002 the defenders were engaged as salaried employees of the Highland Primary Care NHS Trust. The defenders continued to use the subjects as a surgery. The pursuers were for some time unconcerned about the defenders' liability under the lease because the rent was being paid by the Common Services Agency of the NHS and the pursuers were negotiating with the NHS trust for them to take over the tenants' interest in the lease. On 1 April 2004 the NHS trust was replaced by Highland Health Board, which continued to pay the rent. However, negotiations between the pursuers and the health board did not result in the board taking over the lease because their internal financial rules did not permit it. Against that background the pursuers sought declarator that the defenders were jointly and severally liable for all of the tenant's obligations under the lease.
They claimed that, because the partnership was dissolved on 30 September 2002 and as none of the defenders obtained a discharge from their liability under the lease, their liability as individuals continued.
The pursuers had raised an earlier action in August 2006 against Dr R and Dr T, in which they averred that the partnership ended in April 2004 when Dr R resigned and that he and Dr T remained liable under the lease thereafter. They did not sue Dr H who, they averred, had retired from medical practice on 31 March 2003. Dr R and Dr T averred that the partnership had been dissolved on 1 October 2002 when they ceased to be self-employed medical practitioners. They denied that Dr H had been discharged from his obligations under the lease.
Dr T asserted that she was entitled to be indemnified by Dr R and Dr H under clause 6.4 of the partnership agreement. She brought Dr H into the action as a third party. Dr R brought in the Highland Health Board as a second third party.
The parties agreed to a restricted proof, confined to the pursuers' claims against Dr R and Dr T. As a result, Dr H was not represented at the proof hearing. The pursuers went to proof only against Dr T. Lord Genie heard the proof and in an opinion dated 29 January 2008 found that the partnership had come to an end on 30 September 2002. As a result the pursuers failed to prove the averments upon which they relied to support their claim for declarator. Lord Glennie observed that the pursuers had not sought to amend their pleadings to plead the dissolution of the partnership on 30 September 2002 as an esto case and said that, if they had he would have been disinclined to allow an amendment.
That was principally because the fall-back case would have been prejudicial to Dr H's position as it had the potential to undermine the release the pursuers averred they had granted him. Lord Glennie therefore concluded that Dr T was entitled to decree of absolvitor and put the case out for a hearing by order. At the hearing the pursuers moved the court to allow a minute of amendment to be received, pleading an esto case that the partnership had ended on 30 September 2002 and that Dr R, Dr T and Dr H had become liable for the tenant's obligations from that date. Lord Glennie refused to allow the minute of amendment to be received and assoilzied Dr R and Dr T from the conclusions of the summons. The pursuers enrolled a reclaiming motion, however, having consulted senior counsel, they subsequently abandoned it.
Counsel for Dr R pointed out that both the earlier action and the current one were simple petitory actions with the same conclusions and the same substantive plea in law. There was no difference in the grounds of action; both actions were founded on clause 1.3(j) of the lease and the substantial question was the same, namely whether Dr R and Dr T were liable under the lease after the dissolution of the partnership. The change in the factual hypothesis--the pursuers' volte face on the date of dissolution of the partnership and on whether they granted Dr H a discharge--did not elide the plea as the date on which the partnership ended was immaterial to the claim against Dr R and Dr T.
The pursuers, having sought to raise the case that the partnership was dissolved in 2002, consented to decree of absolvitor when they abandoned their reclaiming motion. Counsel submitted that Glasgow and South Western Railway Co v Boyd and Forrest had altered the law by its focus on the essence and reality of the litigation rather than the formal grounds of action. The pursuers could and should have raised in the earlier action the issue of their entitlement on the basis that the partnership had ended in 2002. They did not, and now could not do so because the plea of res judicata covered not only what had been litigated in the prior action but what ought to have been litigated if the pursuers had conducted the action effectively.
Counsel for the pursuers invited the court to repel the pleas of res judicata. She submitted that the issue which the pursuers now sought to litigate had not been determined in the earlier action. The parties to the action were not the same as Dr H was a defender in this action while the pursuers had made no claim against him in the earlier one. The subject matter of the action was different because the pursuers were proceeding on a different factual hypothesis: a 2002 dissolution of the partnership before Dr H withdrew from medical practice and not an April 2004 dissolution. What the earlier litigation had decided was that the dissolution of the partnership had occurred in 2002.
The issues whether the pursuers had discharged Dr H and, if so, the legal effect of that discharge on Dr R and Dr T's obligations had not been determined. Because of the state of the pleadings and Dr H's absence from the proof hearing, the pursuers had not been able to raise the issues they now sought to raise. There was therefore no re-run of the earlier action. Finally, counsel submitted that the pursuers in the current action had raised a new case against the defenders, namely that they were liable as guarantors under schedule 4 of the lease.
The court ruled: The pleas of res judicata succeeded.
In Scotland the plea of res judicata was based on considerations of public policy and sought to prevent the same parties from litigating the same issue repeatedly on substantially the same grounds. Five conditions had to be satisfied for the plea to succeed. In this case only the fourth and fifth conditions were in controversy, that is, (iv) the media concludendi in the two actions must be the same, and (v) except where the earlier decree was a decree in rem, the parties to the second action must be the same as or representative of the parties to the earlier action, or have the same interest. The final condition could be briefly dealt with. The pursuers had sued Dr R and Dr T in both actions.
The fact that in the second action they had added Dr H as a defender was of no consequence to the plea. Were it otherwise, it would be easy for a pursuer to avoid the plea of res judicata by convening an additional defender. There was more difficulty with the fourth condition. The parties disagreed on the extent to which the House of Lords in the Boyd and Forrest case altered the prior law. It appeared that in English law, other than in special circumstances, a party was barred from raising a ground of claim, a defence, or facts, which, if they had been raised in the first action, would or might have affected the decision. But that was not the view of the majority of the House in the Boyd and Forrest case in relation to Scots law and, so far as the court could ascertain from later Scottish cases, it had not found favour since. The House looked at what had been litigated and what had been decided. The case did not provide any authority for the extension of the plea of res judicata to embrace grounds of claim which a pursuer could competently have pleaded in the earlier action where he omitted to do so.
In Scots law the general rule remained that a pursuer was not obliged to join all his media concludendi in one suit; if he had one medium concludendi, and failed in proving that, he might start another, and that whether or not he knew of it at the former time, provided it be a separate medium concludendi. However, the above conclusions did not assist the pursuers in the instant case. For, when one asked what was litigated and what was decided in the first action, the answer was that it was decided that Dr R and Dr T were not liable for the tenant's obligations under and in terms of the lease. Whether that decision would have been reached if parties had organized the progress of the action in a different way might be open to question. But, the plea of res judicata was not concerned with whether the earlier decision was right or wrong. Counsel for the pursuers was correct in her assertion that the pursuers were not allowed to advance a case that Dr R and Dr T were liable on the basis that the partnership had been dissolved in 2002.
But such a case would not have altered the legal basis of their claim, namely that liability arose under clause 1.3(j) of the lease. If the pursuers had been allowed to argue an esto case in the first action, they would simply have pursued the same legal claim on a different factual basis. The pursuers had all the facts to support that case available to them. In the context of the plea of res judicata, a pursuer could bring forward a different factual basis for the same legal claim in a new action only if he could not with reasonable diligence have been aware of the facts when he conducted the first action. There must be res noviter veniens ad notitiam. In this case there was not.
The pursuers' alternative case that the defenders were liable as guarantors under schedule 4 to the lease which set out the covenants of a guarantor did not allow the pursuers to escape the plea of res judicata.
The defenders incurred liability under clause 1.3(j) of the lease and if the guarantee had been intended to bind Dr R and Dr T, it added nothing material to their liability under that clause. It was not a different ground of action. In any event, the schedule was not intended to bind the defenders but to provide the covenants which would be made if a third party guarantor were required. The persons defined as the tenant in the heading of the lease were Dr H and Dr R, the original partners, and their permitted successors and assignees and not the partnership as a separate entity under Scots law.
Thus, where in schedule 4 the guarantor undertook obligations along with the tenant, it appeared that the parties must have envisaged the guarantor to be a person or persons other than the defenders. The court was therefore satisfied that the defenders had no separate liability as guarantors under the schedule which would enable the pursuers to elide the plea of res judicata.
Phosphate Sewage Co v Molleson (1878) 5 R 1125 and (1879) 6 R (HL) 113, Glasgow and South Western Railway Co v Boyd and Forrest 1918 SC (HL) 14 and Grahame v Secretary of State for Scotland 1951 SC 368, 1951 SLT 312 applied.
The first and second defenders would be granted decree of absolvitor. The case against the third defender remained. The case would be put out by order to determine any further procedure in the action so far as directed against him.
Gordon McBain MA, Solicitor
Published date: 26/03/2009
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Citation: [2009] All ER (D) 26 (Apr)
Alternative citations: [2009] EWCA Civ 285
Hearing date: 1 April 2009
Court: Court of Appeal, Civil Division
Judge: Toulson, Aikens and Sullivan LJJ
Representation: Jan Luba QC and Teresa Starr (instructed by Baxter Webbe) for the tenant. James Findlay QC and James Fieldsend (instructed by Welwyn Hatfield District Council) for the landlord.
Abstract: Housing – Local authority housing. Court of Appeal, Civil Division: The district judge had not been entitled to make a summary order for possession in favour of the local authority landlord as there had been insufficient evidence of nuisance provided by the landlord to enable the judge to conclude that the tenant's defence that he had not committed the nuisance alleged was not seriously arguable.
Keywords: Housing – Local authority housing – Possession order – Non-secure tenancy – Complaints of nuisance made against tenant – Authority landlord serving notice to quit – Entitlement of authority landlord to possession of premises – District judge making summary order for possession – Whether district judge erring.
Summary: The appellant tenant had a non-secure tenancy with the respondent landlord, the local authority. The tenant had problems with drug addiction and was the subject of numerous complaints by his neighbours to the landlord. As a result of the complaints, on 30 April 2004, the landlord decided to serve a notice to quit on the tenant, requiring the return of the keys to the property by 10 May. As a result of intervention by a registered charity, from whom the tenant was seeking help with his substance misuse, the landlord wrote to the tenant, on 2 June, stating that it would consider granting him a further non-secure tenancy with an option of being re-housed in a smaller property on the condition that no further complaints of anti-social behaviour were received.
In that letter, the landlord also stated that it did not take action against a person's tenancy unless it was satisfied that there had been a significant breach that had caused a nuisance or annoyance to other residents in the locality. Between July 2004 and April 2005, the landlord received more complaints about the tenant. The landlord sought possession of the property on the basis that the tenant had breached the express terms of the non-secure tenancy in respect of the avoidance of nuisance.
The landlord later changed its stance to rely on the fact that a valid notice to quit had been served. The district judge, considering himself bound by case authority, made the possession order.
Subsequently, that order was set aside and the matter was remitted to the district judge for reconsideration of whether the tenant had a seriously arguable public law defence to the claim for possession. The tenant admitted service of the notice to quit but denied all allegations of nuisance and applied for relief including the grant of a further tenancy of the property with an option of being re-housed in a smaller property. At the remitted hearing, the district judge found that the tenant's defence was not seriously arguable and he made a summary order for possession. The tenant appealed.
He submitted, inter alia, that the district judge had failed to give adequate reasons for finding that his case was not seriously arguable.
The appeal would be allowed.
The district judge had taken an overly narrow view of the significance of the landlord's letter containing the statement of policy that it did not take action against a person's tenancy unless it was satisfied that there had been a significant breach that had caused a nuisance or annoyance to other residents in the locality. In view of the lapse of time after service of the notice to quit and before the issue of possession proceedings, it was seriously arguable that a reasonable local authority landlord would not have issued the proceedings the landlord had, unless satisfied that there had been some significant further breach by the tenant. In the instant case, the paucity of information available to the district judge about the landlord's decision making process led to the conclusion that he had been wrong to conclude that the tenant's defence was not seriously arguable (see [53], [54], and [57] of the judgment).
Lambeth London Borough Council v Kay; Price v Leeds City Council [2006] UKHL 10 considered; Doherty v Birmingham City Council (Secretary of State for Communities and Local Government intervening) [2008] UKHL 57 considered.
Gareth Williams, Barrister
Published date: 02/04/2009
*Myerson v Myerson
Citation: [2009] All ER (D) 05 (Apr)
Alternative citations: [2009] EWCA Civ 282
Hearing date: 1 April 2009
Court: Court of Appeal, Civil Division
Judge: Thorpe, Smith and Sullivan LJJ
Representation: Martin Pointer QC, Justin Warshaw and James Ewins (instructed by Mills & Reeve LLP) for the husband.Nicholas Mostyn QC and Simon Webster (instructed by Sears Tooth) for the wife.
Abstract: Divorce – Financial provision. Court of Appeal, Civil Division: The natural processes of price fluctuation, whether in houses, shares, or any other property, however dramatic, did not enable the court to exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of 'new events'.
Keywords: Divorce – Financial provision – Variation of order – Appeal – Assets of husband and wife divided by consent order – Parties agreeing wife's portion of assets to be 43% and husband's 57% - Wife's portion to be paid in cash instalments – Husband's assets largely consisting of shares – Share price falling as result of global economic situation – Husband appealing out of time against order – Husband submitting wife's portion now representing 105.2% of assets – Whether circumstances constituting 'new events' enabling court to exercise discretion to grant leave to appeal out of time – Whether consent order unfair and unworkable in light of new events.
Summary: The claimant husband was, and remained, a fund manager operating through a company quoted on the AIM Exchange, Principle Capital Holdings Limited (PCH). Following his divorce from the respondent wife, an ancillary relief application was compromised. The compromise was reflected in a consent order perfected in March 2008 (the order). Of the assets, then valued at £25.8m, it was agreed that the wife would receive £11m (43%), and the husband would retain £14.5m (57%). £9.5m of the wife's portion would be provided in cash, with £7m payable in April 2007 and the remainder to be paid in four equal, annual instalments.
The husband's assets consisted of a very substantial share holding in PCH and various properties. At the time of the order, shares in PCH were quoted at £2.77½. In April 2008, when the husband paid the first instalment of £7m to the wife, the share price was £2.65. In July, it had fallen to £2.00 and, by November 2008, it stood at £1.40. The husband issued applications seeking, inter alia, the variation of the order for the payment of the lump sum by instalments. That application was subsequently listed for hearing in July 2009. Meanwhile, in December 2008, when the PCH share price was just £0.72, the husband sought to appeal the order. The court granted leave and proceeded to hear the appeal.
He submitted that forces within the global economy and the collapse in the PCH share price had rendered the order both unfair and unworkable, such that the fundamental assumption upon which it had been made, namely, that the overall division of assets was fair and that compliance with the terms of the order was practicable, had been destroyed. In support of that submission, he stated that his net position at the time of the instant hearing was minus £539,000, while that of the wife was, approximately, plus £11m.
The wife, however, contended that: (i) factors beyond the mere share price had to be considered, such as the husband's willingness to take the majority of his 57% share of the available assets in PCH shares, when he had an unrivalled view of that company's future prospects at a time when the share price had been falling steadily for three months; (ii) it had been the husband's decision to pay her a fixed sum, albeit by instalments; (iii) in the light of the husband's pending application to vary the order, the instant appeal was superfluous since, on the facts, it could not possibly lead to a more favourable outcome for the husband than that which the judge below would have the jurisdiction to order were the application to succeed; (iv) the husband's appeal would open the floodgates to a range of similar cases; and (v) the history of the case did not reveal any specific event or events constituting a 'new event' such that the court, acting in accordance with the relevant authorities, could exercise its discretion to grant leave to appeal out of time.
The appeal would be dismissed.
(1) The identification of some concrete new event, such as the liquidation of the company, was not required for the court properly to be able to exercise its discretion to grant leave to appeal out of time from an order for financial provision or property transfer made after a divorce on the ground of new events (see [37] of the judgment).
Such a requirement would be to put too narrow an interpretation of the definition of 'new events' in the relevant case law; 'events' in that context embraced happenings, developments or occurrences (see [37] of the judgment).
Barder v Caluori [1987] 2 All ER 440 applied.
(2) The application of settled principles clearly pointed to the dismissal of the husband's appeal. That conclusion was strengthened by a number of additional factors. First, the husband, with all knowledge both public and private, had agreed to an asset division which left him captain of the ship, certain to keep for himself whatever profits or gains his enterprise and experience would achieve in the years ahead. Second, he had clearly taken a speculative position in compromising his wife's claims; there was no reason why the court should subsequently relieve him of the consequences of his speculation by re-writing the bargain at his behest.
Thirdly, he continued to enjoy control of the opportunities that went with that bargain. Finally, because the payment of the lump sum was spread over five instalments, the statutory power of variation existed, and had been invoked. If the circumstances justified the reopening of the order, then it would be within the court's jurisdiction to rewrite that part of it. Given that the outstanding instalments amounted to £2.5m, much more than token relief was there, albeit subject to the exercise of the judicial discretion (see [31]-[36] of the judgment).
Barder v Caluori [1987] 2 All ER 440 applied; Cornick v Cornick [1994] 2 FLR 530 applied.
Per curiam: There may be many who are contemplating an attempt to reopen an existing ancillary relief order on the grounds of subsequently encountered financial eclipse. All in that situation should ponder the analytical characterisation contained in the authorities and ask themselves whether the events upon which they intend to rely can be bought within the categories therein set out. Even then they would be well advised to heed the warning that very few successful applications have been reported. The natural processes of price fluctuation, whether in houses, shares, or any other property, and however dramatic, do not satisfy the test to be applied.
Alison Pryor, Barrister
Published date: 01/04/2009
Country Estates Construction Ltd v Oxfordshire County Council
Citation: [2009] All ER (D) 306 (Mar)
Alternative citations: [2009] EWHC 642 (Ch)
Hearing date: 27 March 2009
Court: Chancery Division
Judge: Judge Toulmin QC sitting as a judge of the High Court
Representation: Gary Cowen (instructed by Clifton Ingram LLP) for the claimant.Wayne Clark (instructed by Oxfordshire County Council Legal Services) for the defendant.
Abstract: Town and country planning – Permission for development. Chancery Division: The proposed construction of a cycle path and pedestrian link by the defendant county council was in breach of a clause in the transfer of sale between it and the claimant development company, as the clause had to be construed in the context of an earlier grant of planning permission which contained a condition that the relevant strip of land was to be reserved solely for landscaping.
Keywords: Town and country planning - Permission for development - Condition - Defendant county council selling land with planning permission to claimant development company - Defendant retaining some of original land - Defendant covenanting with claimant to maintain landscaping on retained land in accordance with planning permission - Defendant proposing construction of cycle way and path on retained land - Whether proposal breaching covenant.
Summary: In February 1987, Oxford County Council (the defendant) made a planning application to the local planning authority in respect of a parcel of land adjoining the A361 Banbury Road (the land). The purpose of the application was to provide a new access to the A361, a footway, and adequate landscaping and screening for a new development. The application was granted on 22 May 1987. Condition 5 of the planning permission stated: 'apart from the means of access into the site a strip of land with a minimum width of 10m be reserved solely for landscaping along all boundaries of the application area'.
The purpose of the condition was to ensure that the development was complimented by adequate landscaping. Condition 7 was also imposed to ensure that the development was complimented by adequate landscaping. The purpose of condition 9 was to define the boundary of the planning land and to protect the agricultural land. In 1988, the defendant proposed to sell the land and issued particulars of sale for a sale by formal tender.
The particulars stated that outline planning permission had been granted for a development. An addendum to the particulars stated that, in relation to what were described as landscaping strips, the defendant would provide and retain the planting, to a high environmental standard, along the south, south-eastern and eastern boundaries of the development. The particulars of sale also contained a condition which stated that the property would be sold with the benefit of a covenant of the vendor to provide and maintain landscaping on land retained by the defendant in accordance with the planning permission of 22 May 1987. The land was sold to the claimant company on 22 August 1988.
The transfer defined the defendant's 'retained land' as land adjoining the property sold. Clause 4 of the transfer stated that the defendant: 'hereby covenants with the purchaser and its successors in title in respect of the property [..] that the Council will provide and maintain landscaping on the Council's Retained Land in accordance with the planning permission issued [..] on 22 May 1987'. In April 1989, planning permission was granted for the erection of 33 industrial/office units by the claimant on the site.
By then continuous fencing had been provided on the landscaping strip. In February 2008, the local planning authority resolved to grant planning permission to the defendant for the construction of a cycle path and pedestrian access from the claimant's industrial estate to a proposed new development to the south of the claimant's land. The claimant contended that the proposal would breach the covenant to maintain the landscaping scheme imposed by the planning authority in May 1987. The master ordered that it be tried as a preliminary issue whether on a true construction of the terms of the transfer, the proposed cycle path and pedestrian link or the removal or destruction of any part of the landscaping strip on the defendant's retained land constituted a breach of clause 4 of the transfer.
The claimant submitted that (i) 'maintain' in clause 4 meant maintain in existence in its entirety for all time; and (ii) the defendant's proposed actions in breaching the covenant would not be de minimis. The defendant contended, inter alia, that (i) clause 4 of the transfer had to construed in the context of conditions 5 and 7, and the reason for those conditions was to ensure that development was completed by adequate landscaping; the defendant's proposals allowed for adequate landscaping; (ii) landscaping did not prevent a path being created through the landscape; and (iii) 'maintain' properly construed in context meant 'generally to maintain landscaping as a feature'.
The court ruled:
Clause 4 of the transfer had to be read in the context of a planning permission whose stated purpose had been not only to provide adequate landscaping but also to define the boundary of the development and to protect the agricultural land to the south. That required adequate landscaping along the whole of the relevant boundary of the claimant's land to be provided by the defendant. That interpretation reinforced the construction of the words of condition 5 that the strip of land was to reserved solely for landscaping.
The provision of a cycle track and pathway would plainly be a contravention of that condition and would also be a material change in that it would alter the environment and the purpose of the landscaping which was to provide landscaping to a high environmental standard and to protect the agricultural land. There was nothing in the surrounding circumstances to alter those conclusions on construction. Accordingly, on a true construction of the terms of transfer, the creation of a cycle path and pedestrian link would constitute a breach of clause 4 of the transfer (see [91], [93], [105], [106] of the judgment).
The defendant would give an undertaking not to proceed with the plan to create the cycle path and pedestrian link.
Alison Blood, Barrister
Published date: 01/04/2009
Hughes v Borodex Limited
Citation: [2009] All ER (D) 15 (Apr)
Alternative citations: [2009] EWHC 565 (Admin)
Hearing date: 25 March 2009
Court: Queen's Bench Division, Administrative Court
Judge: Collins J
Representation: Victoria Williams (instructed by David Tagg & Co) for the appellant.Christopher Heather (instructed by Forsters) for the respondent.
Abstract: Appeal – Rent assessment committee. Queen's Bench Division, Administrative Court: An appeal against a decision of the Rent Assessment Committee on the ground that improvements which had been made to the property in question should have been regarded when assessing the rent payable was dismissed.
Keywords: Appeal – Rent assessment committee – Determination of fair rent – Appellant appealing against decision of committee on ground that it had not considered improvements she had made to property - Committee deciding rent affecting appellant's assured status - Whether appellant could require addition or alteration of wording of relevant statutory provisions in order to keep assured status - Housing Act 1988, ss 13(4), 14(3)(b) - Local Government and Housing Act 1989, section 11(6) and (7).
Summary: Section 14 of the Housing Act 1988, so far as material, provides: ' (2) In making a determination under this section, there shall be disregarded [..] (b) any increase in the value of the dwelling-house attributable to a relevant improvement carried out by a person who at the time it was carried out was the tenant, if the improvement -- (i) was carried out otherwise than in pursuance of an obligation to his immediate landlord [..] (3) For the purposes of subsection (2)(b) above, in relation to a notice which is referred by a tenant as mentioned in subsection (1) above, an improvement is a relevant improvement if either it was carried out during the tenancy to which the notice relates or the following conditions are satisfied, namely -- (a) that it was carried out not more than twenty-one years before the date of service of the notice; and (b) that, at all times during the period beginning when the improvement was carried out and ending on the date of service of the notice, the dwelling-house has been let under an assured tenancy [..] '
Section 11 of the Local Government and Housing Act 1989, so far as material, provides: ' (6) Subsections (2), [(3A),] (4) and (5) of section 14 of the 1988 Act shall apply in relation to a determination of rent under sub-paragraph (5) above as they apply in relation to a determination under that section subject to the modifications in sub-paragraph (7) below; and in this paragraph 'rent' shall be construed in accordance with subsection (4) of that section. (7) The modifications of section 14 of the 1988 Act referred to in sub-paragraph (6) above are that in subsection (2), the reference in paragraph (b) to a relevant improvement being carried out shall be construed as a reference to an improvement being carried out during the long residential tenancy and the reference in paragraph (c) to a failure to comply with any term of the tenancy shall be construed as a reference to a failure to comply with any term of the long residential tenancy [..] '
The appellant was an assured periodic tenant of a property by virtue of section 186 of the Local Government and Housing Act 1989 (the 1989 Act). She had, for a number of years, carried out improvement works on the property; works which had not been required by the landlord. So long as she remained an assured tenant, it was common ground that she was entitled to the protection provided by the Housing Act 1988 (1988 Act), which included security of tenure and the right to apply to a Rent Assessment Committee to fix the rent.
The respondent served a notice which brought the long tenancy to an end and proposed a new assured tenancy to commence in February 2004. Agreement on the rent payable was not achieved, which led to the appellant referring the landlord's notice of increase to a Rent Assessment Committee (the committee). The committee determined the rent payable for the flat to be £2,340 per month pursuant to section 14(3)(b) of the 1988 Act. By that determination, the rent payable by the appellant exceeded the sum of £25,000 per annum, which consequently meant that the appellant would no longer retain her assured status under paragraph 2 of schedule 1 to the 1988 Act. The appellant appealed.
The appellant submitted that to construe the provisions in the way that the committee had done was contrary to the purpose of the statutory provisions which were designed, as section 186 of the 1989 Act stated, to give security to those whose long tenancies had come to an end. The absence from the 1989 Act of provisions which gave an equivalent protection to those who had been tenants under a long tenancy as if they had been assured tenants throughout was an oversight and it was open to the judge to construe the provisions overall by reading in words which provided that protection. She also contended that the 1954 Act, which was repealed, provided protection which was wider in that there was no 21 years or other limit and there was no reason to believe that Parliament had intended in 1989 to remove protections and so security which existed. The whole purpose of schedule 10 was to maintain security and not to reduce it.
The appeal would be dismissed.
On the authorities, a submission that the court should not apply the unambiguous provisions of an Act, but should write in words to achieve the supposed purpose of those provisions was one which would rarely prevail and then only in a clear case. The power would normally only be exercised to prevent a provision being unintelligible, absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the statute (see [14] and [15] of the judgment).
In the instant case, while considerable sympathy could be afforded to the appellant, the provisions could not be altered in her favour. The application had been made under section 13(4) of the 1988 Act. Hence, schedule 10 of the 1989 Act had no application. Accordingly, the appellant could not have taken advantage of the provisions of paragraphs 11(6) and (7) of the 1989 Act since they did not affect her application (see [18] of the judgment).
Inco Europe Ltd v First Choice Distribution (a firm) [2000] 1 All ER (Comm) 674 applied; East Coast Amusement Co Ltd v British Transport Board [1965] AC 58 considered; Smith's (Henry) Charity Trustees v Hemmings [1983] 1 EGLR 94 considered; R (on the application of Morris) v London Rent Assessment Committee [2002] All ER (D) 75 (Mar) considered.
Avneet Baryan, Barrister
Published date: 01/04/2009
*Alexander-David v Mayor and Burgesses of the London Borough of Hammersmith and Fulham
Citation: [2009] All ER (D) 17 (Apr)
Alternative Citations: [2009] EWCA Civ 259
Hearing date: 1 April 2009
Court: Court of Appeal, Civil Division
Judge: Waller, Scott Baker and Sullivan LJJ
Representation: Kelvin Rutledge (instructed by Michael Cogher) for the authority. Kerry Bretherton (instructed by Duncan Lewis & Co) for the defendant.
Abstract: Landlord and tenant – Tenancy. Court of Appeal, Civil Division: Where a local housing authority had served a notice to quit on the defendant, then aged 17, and had commenced possession proceedings against her, the district judge had erred in making a possession order since, inter alia, the service of the notice to quit on the defendant had not been sufficient to terminate the tenancy. Moreover, schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 applied to the tenancy granted to the defendant.
Keywords: Landlord and tenant – Tenancy – Agreement – Claimant local housing authority granting minor tenancy of premises – Authority subsequently serving notice to quit and commencing possession proceedings – Judge ordering defendant to give up possession – Whether authority holding premises on trust for minor – Whether authority wrong to serve notice to quit – Whether judge erring – Law of Property Act 1925 – Housing Act 1985 – Trusts of Land and Appointment of Trustees Act 1996, schedule 1.
Summary: Schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996, so far as material, provides: '(1) Where after the commencement of this Act a person purports to convey a legal estate in land to a minor, or two or more minors, alone, the conveyance -- (a) is not effective to pass the legal estate, but (b) operates as a declaration that the land is held in trust for the minor or minors (or if he purports to convey it to the minor or minors in trust for any persons, for those persons). (2) Where after the commencement of this Act a person purports to convey a legal estate in land to -- (a) a minor or two or more minors, and (b) another person who is, or other persons who are, of full age, the conveyance operates to vest the land in the other person or persons in trust for the minor or minors and the other person or persons (or if he purports to convey it to them in trust for any persons, for those persons). (3) Where immediately before the commencement of this Act a conveyance is operating (by virtue of section 27 of the Settled Land Act 1925) as an agreement to execute a settlement in favour of a minor or minors -- (a) the agreement ceases to have effect on the commencement of this Act, and (b) the conveyance subsequently operates instead as a declaration that the land is held in trust for the minor or minors.'
The defendant applied to the claimant local housing authority for accommodation under part 7 of the Housing Act 1996, when she was aged 16. The authority accepted that it had a duty under section 193(2) of the 1996 Act to secure that accommodation was available for her. On 25 June 2006, it discharged that duty by entering into an agreement with her, which gave her a tenancy of the premises (the agreement). The agreement referred to the parties to the agreement as 'the landlord' and 'the tenant', respectively.
The defendant moved into the premises. The following year, one of the authority's housing officers wrote to the defendant about various complaints that had been received from other residents. Those complaints were not resolved and consequently, the authority decided to terminate the agreement and recover possession. On 14 September 2007, the authority served a notice to quit addressed to the defendant by placing the notice through the letterbox at the premises in accordance with clause 2 of the agreement. Possession proceedings were commenced by the authority. By the time a formal defence was served the defendant had ceased to be a minor. The district judge struck out the defence and ordered the claimant to give up possession of the premises. The defendant appealed against the district judge's decision.
She submitted that: (i) in entering into its standard form tenancy agreement with her, the authority had purported to grant her a legal estate with the consequence that, in accordance with paragraph 1(1) of schedule 1 to the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA), the agreement had not been effective to grant her a legal tenancy, and operated as a declaration by the authority that it held the premises on trust for her; and (ii) as a trustee holding the premises on her behalf, the authority could not serve a notice to quit. She therefore submitted that the district judge had had no jurisdiction to make the order for possession. Consideration was given to the Law of Property Act 1925 and the Housing Act 1985.
The appeal would be allowed.
(1) A declaration by an authority that it held its property on trust for a third party would, at least arguably, be a disposal of that property for the purposes of section 32 of the 1985 Act. Authorities might, in principle, grant tenancies to minors that were effective in equity. A landlord who had full capacity to grant a legal tenancy, and who granted a tenancy without any express qualification to the effect that something less than a legal tenancy was being granted, could not subsequently say that what he had granted was not a legal tenancy, but an equitable tenancy. A landlord did not elect to grant an equitable tenancy; such a tenancy arose in specified circumstances, recognised by equity (see [19], [22] and [30] of the judgment).
The 1925 Act did not prohibit the grant by the authority of a legal estate to the defendant, it merely prevented her from holding such an estate. The authority had entered into one of its standard form tenancy agreements with the defendant which would normally be construed as the grant of a legal estate in the premises. The agreement between the defendant and the authority had been in the authority's standard form for creating legal tenancies with its adult tenants. If the agreement had referred to a trustee, that would have been a clear indication that the authority had not been purporting to convey a legal estate. There would therefore be no need for TOLATA to declare that the agreement was to 'operate as a declaration that the land is held in trust' because the agreement in referring to a trustee would itself have included such a declaration. In all the circumstances, schedule 1 to TOLATA applied to the tenancy that had been granted to the defendant (see [16], [24]-[26] and [30] of the judgment).
Kingston upon Thames Royal London Borough Council v Prince (1993) 31 HLR 794 considered.
(2) Describing an agreement as an agreement to grant a licence would not suffice to avoid the creation of a tenancy if an authority allowed an applicant to have exclusive possession of residential premises for a term, and did not provide any attention or services (see [37] of the judgment).
In the instant case, since the authority had held on trust for the defendant the property for a long period, it could not lawfully destroy the subject matter of the trust by serving notice to quit on her. The authority had been both the lessor and trustee. In those circumstances, the service of the notice to quit only on the minor beneficiary of the trust had not been sufficient to terminate the tenancy that had been held by the authority as trustee on the defendant's behalf (see [31] and [35] of the judgment).
Street v Mountford [1985] 2 All ER 289 considered.
Per Curiam: It is important that the inability of a minor to hold a legal estate is expressly recognised, and that any agreement with a 16 or 17-year-old expressly states that because the applicant is a minor the authority is not granting a legal estate but is instead securing that accommodation is available by granting something other than such an estate.
Jade Campbell, Barrister
Published date: 01/04/2009
R (on the application of Smith) v Land Registry
Citation: [2009] All ER (D) 208 (Mar)
Alternative citations: [2009] EWHC 328 (Admin)
Hearing date: 13 February 2009
Court: Queen's Bench Division, Administrative Court
Judge: Judge Pelling QC sitting as a judge of the High Court
Representation: David Watkinson (instructed by Community Law Partnership) for the claimant. James Strachan (instructed by the Treasury Solicitor) for the defendant.
Abstract: Land registration – Acquisition of land by possession. Queen's Bench Division, Administrative Court: The court ruled that the decision of the Assistant Land Registrar for the defendant Land Registry to reject the claimant's application for first registration of title by way of adverse possession in respect of land which the local planning authority had claimed formed part of a public highway was correct having regard to the authorities on the matter. The court stated that the legal point which had been raised by the claimant was 'simply not arguable' but not, as the defendant had claimed, academic.
Keywords: Land registration – Acquisition of land by possession – Adverse possession – Claimant submitting application for first registration of title in respect of land lived on for more than 12 years – Highway authority arguing land forming part of public highway to which adverse possession could not be claimed – Registrar from defendant Land Registry rejecting application – Claimant raising legal point on adverse possession of highways – Defendant arguing claimant's point academic – Whether registrar correct to reject application - Whether point raised academic.
Summary: On an unspecified date, the claimant submitted an application for first registration of title in respect of land in Willingham, England (the land). The claimant claimed title by adverse possession on the basis that his caravan and associated structures had been on the land for an excess of 12 years before the application was made. The application was opposed by the highway authority; its view having been that the land formed part of a public highway which was open to all forms of traffic. By letter dated 25 July 2007, the Assistant Land Registrar on behalf of the defendant Land Registry rejected the application on two bases, namely: (i) that the land was a public highway to which adverse title could not be claimed; and (ii) that the evidence was not sufficient to establish an 'intention to possess' the land or adverse possession of the land (see [2] of the judgment). The claimant applied for judicial review, seeking to challenge (i) only.
The defendant contended that the claimant's decision to limit the challenge to (i) only amounted to the raising of an academic point which should of itself lead to the dismissal of the application or, alternatively, the refusal of a remedy. Consideration was given to numerous authorities, but in particular the statement of principle which was established by Joyce J in Harvey v Truro RDC (see (1903) 1 LGR 758), the dictum of Mummery LJ in Bromley London Borough Council v Morritt (see (1999) 79 P & CR 536), and the assumption made by Swinfen Eady J in St Ives Corpn v Wadsworth (see (1908) 6 LGR 306).
The application would be dismissed.
The claimant's argument which in effect was that on the appropriate facts, such as those in the instant case, a highway could be extinguished by adverse possession was simply not arguable. The statement of principle established by Joyce J in Harvey was correct, as was the assumption that had been made by Swinfen Eady J in St Ives and the dictum of Mummery LJ in Morritt at any rate in relation to a contention that a possessory title had been obtained which had the effect of extinguishing some or all of a public highway. In relation to the defendant's contention that the claimant's argument was academic, that was wrong. The legal point raised by the claimant required resolution for two reasons - in each case the same legal point could arise - first, a renewed application to the defendant might be made, and, secondly, the authority might wish to seek possession of the land or remove the caravan and associated structures from it and/or prosecute for obstruction (see [19]-[21] of the judgment).
It followed, in those circumstances, that the decision under challenge would stand.
Harvey v Truro RDC (1903) 1 LGR 758 applied; St Ives Corpn v Wadsworth (1908) 6 LGR 306 applied; Bromley London Borough Council v Morritt (1999) 79 P & CR 536 applied; Turner v Ringwood Highway Board (1870) LR 9 Eq 418 considered; J A Pye (Oxford) Ltd v Graham [2002] 3 All ER 865 considered; Bakewell Management Ltd v Brandwood [2004] 2 All ER 305 considered.
Robert Chan, Barrister
Published date: 31/03/2009
Bracknell Forest Borough Council v Green and another
Citation: [2009] All ER (D) 211 (Mar)
Alternative citations: [2009] EWCA Civ 238
Hearing date: 20 March 2009
Court: Court of Appeal, Civil Division
Judge: Mummery, Lawrence Collins and Rimer LJJ
Representation: David Carter and Toby Vanhegan (instructed by Alex Jack, Corporate Legal Services, Bracknell) for the authority. Jan Luba QC and Paul Diamond (instructed by Chambers Solicitors, Slough) for the first respondent.
Abstract: Landlord and tenant – Recovery of possession. Court of Appeal, Civil Division: The recorder had taken the availability of suitable accommodation into account as a relevant consideration when he decided that it was not reasonable to make an order for possession against a 50-year-old respondent who had lived in the property in question all his life.
Keywords: Landlord and tenant – Recovery of possession – Order for possession – 50-year-old tenant living in same three-bedroom house all his life – Tenant's sister also living in property since 1984 – Landlord local authority seeking order for possession on basis accommodation afforded more extensive than reasonably required – Judge holding not reasonable to make possession order – Whether judge erring – Whether judge misdirected himself in application of relevant law – Housing Act 1985, section 84, schedule 2, part III.
Summary: Section 84 of the Housing Act 1985 provides, so far as material: '(1) The court shall not make an order for the possession of a dwelling-house let under a secure tenancy except on one or more of the grounds set out in Schedule 2. (2) The court shall not make an order for possession-- [..] (c) on the grounds set out in Part III of that Schedule (grounds 12 to 16), unless it both considers it reasonable to make the order and is satisfied that suitable accommodation will be available for the tenant when the order takes effect; [..] '
Part III of schedule 2 to the Housing Act 1985 provides, so far as material: 'Grounds on which the Court may Order Possession if it Considers it Reasonable and Suitable Alternative Accommodation is Available [..] Ground 16 The accommodation afforded by the dwelling-house is more extensive than is reasonably required by the tenant [..] The matters to be taken into account by the court in determining whether it is reasonable to make an order on this ground include-- (a) the age of the tenant, (b) the period during which the tenant has occupied the dwelling-house as his only or principal home, and (c) any financial or other support given by the tenant to the previous tenant.'
The respondent was born in 1959 and had lived in the same semi-detached three-bedroom house (the property) all his life.
Since 1984, his sister, the second respondent in the instant proceedings, had also lived there with him. The property had originally been let to his father by the predecessors-in-title to the claimant local authority. The tenancy became a secure tenancy under the provisions of the Housing Act 1985. The respondent succeeded to that tenancy in 2005. In 2006, the local authority served a notice on the respondent seeking possession of the property on ground 16 of schedule 2 to the 1985 Act, on the basis that the accommodation was more extensive than was reasonably required by the respondent. Possession proceedings were commenced and a hearing took place in January 2008. The recorder made the following findings, inter alia, at that hearing: (i) the accommodation was more extensive than that reasonably required by the respondent; (ii) four alternative properties had been offered to the respondent and his sister, but they had declined to view them; and (iii) one of those properties was 'suitable'.
The recorder then stated that: 'There is no point in discussing this issue [suitability] until first the issue of reasonableness has been decided. Plainly if it is unreasonable to make a possession order it is immaterial whether suitable alternative accommodation is available.' Having gone on to conduct a balancing exercise, weighing the reasons why the local authority wanted possession against the reasons why the respondent wanted to stay with his sister in the property, the recorder concluded, inter alia, that the property provided the respondent and his sister 'with a profound sense of security' and that forcing them out of the property would 'permanently destabilise' them. Finding that, on balance, such destabilisation was not acceptable, he concluded that on the unusual facts of the case it was not reasonable to make a possession order. The local authority appealed.
It submitted that: (i) the recorder had given insufficient weight to the factors relied on by the authority in support of its application; and (ii) the recorder had misdirected himself by wrongly excluding the availability of suitable accommodation from his consideration whether it was reasonable to make a possession order.
The appeal would be dismissed.
In general, an appeal court should not be overcritical of the lack of detailed discussion in the judgment of the lower court. The appeal process was not there merely for having another go at the kind of fact-based issue that the lower court was often better placed to assess than a law-oriented appellate court (see [29]-[30] of the judgment).
In the instant case, the court would be slow to upset the recorder's evaluation of reasonableness on the possession order issue, unless it was clear that he had acted under an error of principle or his decision was obviously wrong. The real issue was whether the recorder had taken the availability of suitable accommodation into account as a relevant consideration when he decided that it was not reasonable to make an order for possession.
If he had, that was the end of the matter and there had been no need for him to re-visit suitable accommodation specifically. From the judgment as a whole, it was clear he had had that matter well in mind throughout his consideration of the local authority's claim and had given it proper consideration before deciding to refuse the application for a possession order. Taking into account all the factors relevant to the reasonableness of making a possession order, he had been entitled to conclude on the facts of the instant case that the combination of factors relied on by the local authority, including the offer of suitable accommodation, was outweighed by the length of the respondent's occupation of the property, his personal and family circumstances, his age and the permanently destabilising effect of a possession order on him.
Moreover, the terms of the 1985 Act expressly contemplated cases in which the tenant's personal circumstances, such as, in the instant case, the respondent's age and unusually long period of occupation, could outweigh the pressures on public housing and other factors. The facts were, as the recorder had said, unusual, and in all the circumstances one could readily appreciate why he had decided that it was not reasonable to make a possession order against the respondent (see [30], [33]-[35] and [37] of the judgment).
Alison Pryor, Barrister
Published date: 26/03/2009
Primary Health Care Centres (Broadford) Ltd v Ravangave and others
Citation: 2009 Scot (D) 16/4
Alternative citations: [2009] CSOH 46
Hearing date: 26 March 2009
Court: Outer House, Court of Session
Judge: Lord Hodge
Representation: Munro (instructed by Shepherd & Wedderburn LLP) for the pursuers. Sandison (instructed by Brodies LLP) for the first defender. Beynon (instructed by Balfour + Manson LLP) for the second defender.
Abstract: Civil procedure – Res Judicata. Court of Session: In an action in which the pursuers sought declarator that three medical practitioner and former partners were jointly and severally liable for the tenant's obligations under a lease, the court held that the first and second defenders' plea of res judicata succeeded, decree of absolvitor having been granted in the pursuers' earlier action seeking the same declarator against them.
Keywords: Civil procedure – Res judicata – Pursuers raising action seeking declarator that first and second defenders jointly and severally liable for tenant's obligations under lease – Court granting decree of absolvitor – Pursuers subsequently raising second action seeking same declarator against first, second and third defenders – First and second defenders raising plea of res judicata – Whether plea applicable.
Summary: This was an action by the landlords of heritable property in the Isle of Skye known as the Broadford Medical Centre ('the subjects'), against general medical practitioners who were formerly partners in a partnership known as the Broadford Medical Practice. The pursuers sought declarator that the defenders were jointly and severally liable for all the tenant's obligations under the lease of the subjects. This was the second action the pursuers had raised against Dr R and Dr T, the first and second defenders, seeking declarator that they were bound by the terms of the lease. The first action resulted in decree of absolvitor. In this action Dr R and Dr T pleaded res judicata.
The court heard a debate on the scope and application of that defence. At a procedural hearing before the debate, counsel for Dr H, the third defender, intimated to the court that he did not contest the declarator.
The factual background was that Dr H owned the subjects. He practised as a GP in partnership with Dr R and the subjects were their surgery. In about 2000 Dr H leased the subjects to the pursuers. They in turn let them to Dr H and Dr R as the partners of and trustees for the partnership, and their permitted successors and assignees. The lease was for 33 years from November 2000. Clause 1.3(j) provided that the obligations of the tenant would be binding jointly and severally not only on the partners of the firm when the lease was entered into but also on all persons who in future became partners.
It also provided that those obligations would subsist notwithstanding any changes in the constitution of the partnership by the assumption of new partners or the retiral, death or withdrawal of any partner, and that the pursuers would grant a discharge from joint and several liability under the lease to a partner who withdrew from the continuing partnership, obtainable on the written application of that partner or his executors so long as there remained a partnership of two or more persons. On 19 November 2001 Dr T joined the partnership as a partner. The defenders entered into a partnership agreement dated 13 November 2001.
In that agreement Dr T acknowledged that she was liable along with the other partners to implement the obligations of the partnership under the lease. The pursuers in this action averred, and the defenders admitted, that the partnership ended on 30 September 2002. The dissolution of the partnership arose out of a change in the way in which the National Health Service provided GP's services to the public. Until 30 September 2002 such services were provided in Broadford through the partnership.
From 1 October 2002 the defenders were engaged as salaried employees of the Highland Primary Care NHS Trust. The defenders continued to use the subjects as a surgery. The pursuers were for some time unconcerned about the defenders' liability under the lease because the rent was being paid by the Common Services Agency of the NHS and the pursuers were negotiating with the NHS trust for them to take over the tenants' interest in the lease. On 1 April 2004 the NHS trust was replaced by Highland Health Board, which continued to pay the rent. However, negotiations between the pursuers and the health board did not result in the board taking over the lease because their internal financial rules did not permit it. Against that background the pursuers sought declarator that the defenders were jointly and severally liable for all of the tenant's obligations under the lease.
They claimed that, because the partnership was dissolved on 30 September 2002 and as none of the defenders obtained a discharge from their liability under the lease, their liability as individuals continued.
The pursuers had raised an earlier action in August 2006 against Dr R and Dr T, in which they averred that the partnership ended in April 2004 when Dr R resigned and that he and Dr T remained liable under the lease thereafter. They did not sue Dr H who, they averred, had retired from medical practice on 31 March 2003. Dr R and Dr T averred that the partnership had been dissolved on 1 October 2002 when they ceased to be self-employed medical practitioners. They denied that Dr H had been discharged from his obligations under the lease.
Dr T asserted that she was entitled to be indemnified by Dr R and Dr H under clause 6.4 of the partnership agreement. She brought Dr H into the action as a third party. Dr R brought in the Highland Health Board as a second third party.
The parties agreed to a restricted proof, confined to the pursuers' claims against Dr R and Dr T. As a result, Dr H was not represented at the proof hearing. The pursuers went to proof only against Dr T. Lord Genie heard the proof and in an opinion dated 29 January 2008 found that the partnership had come to an end on 30 September 2002. As a result the pursuers failed to prove the averments upon which they relied to support their claim for declarator. Lord Glennie observed that the pursuers had not sought to amend their pleadings to plead the dissolution of the partnership on 30 September 2002 as an esto case and said that, if they had he would have been disinclined to allow an amendment.
That was principally because the fall-back case would have been prejudicial to Dr H's position as it had the potential to undermine the release the pursuers averred they had granted him. Lord Glennie therefore concluded that Dr T was entitled to decree of absolvitor and put the case out for a hearing by order. At the hearing the pursuers moved the court to allow a minute of amendment to be received, pleading an esto case that the partnership had ended on 30 September 2002 and that Dr R, Dr T and Dr H had become liable for the tenant's obligations from that date. Lord Glennie refused to allow the minute of amendment to be received and assoilzied Dr R and Dr T from the conclusions of the summons. The pursuers enrolled a reclaiming motion, however, having consulted senior counsel, they subsequently abandoned it.
Counsel for Dr R pointed out that both the earlier action and the current one were simple petitory actions with the same conclusions and the same substantive plea in law. There was no difference in the grounds of action; both actions were founded on clause 1.3(j) of the lease and the substantial question was the same, namely whether Dr R and Dr T were liable under the lease after the dissolution of the partnership. The change in the factual hypothesis--the pursuers' volte face on the date of dissolution of the partnership and on whether they granted Dr H a discharge--did not elide the plea as the date on which the partnership ended was immaterial to the claim against Dr R and Dr T.
The pursuers, having sought to raise the case that the partnership was dissolved in 2002, consented to decree of absolvitor when they abandoned their reclaiming motion. Counsel submitted that Glasgow and South Western Railway Co v Boyd and Forrest had altered the law by its focus on the essence and reality of the litigation rather than the formal grounds of action. The pursuers could and should have raised in the earlier action the issue of their entitlement on the basis that the partnership had ended in 2002. They did not, and now could not do so because the plea of res judicata covered not only what had been litigated in the prior action but what ought to have been litigated if the pursuers had conducted the action effectively.
Counsel for the pursuers invited the court to repel the pleas of res judicata. She submitted that the issue which the pursuers now sought to litigate had not been determined in the earlier action. The parties to the action were not the same as Dr H was a defender in this action while the pursuers had made no claim against him in the earlier one. The subject matter of the action was different because the pursuers were proceeding on a different factual hypothesis: a 2002 dissolution of the partnership before Dr H withdrew from medical practice and not an April 2004 dissolution. What the earlier litigation had decided was that the dissolution of the partnership had occurred in 2002.
The issues whether the pursuers had discharged Dr H and, if so, the legal effect of that discharge on Dr R and Dr T's obligations had not been determined. Because of the state of the pleadings and Dr H's absence from the proof hearing, the pursuers had not been able to raise the issues they now sought to raise. There was therefore no re-run of the earlier action. Finally, counsel submitted that the pursuers in the current action had raised a new case against the defenders, namely that they were liable as guarantors under schedule 4 of the lease.
The court ruled: The pleas of res judicata succeeded.
In Scotland the plea of res judicata was based on considerations of public policy and sought to prevent the same parties from litigating the same issue repeatedly on substantially the same grounds. Five conditions had to be satisfied for the plea to succeed. In this case only the fourth and fifth conditions were in controversy, that is, (iv) the media concludendi in the two actions must be the same, and (v) except where the earlier decree was a decree in rem, the parties to the second action must be the same as or representative of the parties to the earlier action, or have the same interest. The final condition could be briefly dealt with. The pursuers had sued Dr R and Dr T in both actions.
The fact that in the second action they had added Dr H as a defender was of no consequence to the plea. Were it otherwise, it would be easy for a pursuer to avoid the plea of res judicata by convening an additional defender. There was more difficulty with the fourth condition. The parties disagreed on the extent to which the House of Lords in the Boyd and Forrest case altered the prior law. It appeared that in English law, other than in special circumstances, a party was barred from raising a ground of claim, a defence, or facts, which, if they had been raised in the first action, would or might have affected the decision. But that was not the view of the majority of the House in the Boyd and Forrest case in relation to Scots law and, so far as the court could ascertain from later Scottish cases, it had not found favour since. The House looked at what had been litigated and what had been decided. The case did not provide any authority for the extension of the plea of res judicata to embrace grounds of claim which a pursuer could competently have pleaded in the earlier action where he omitted to do so.
In Scots law the general rule remained that a pursuer was not obliged to join all his media concludendi in one suit; if he had one medium concludendi, and failed in proving that, he might start another, and that whether or not he knew of it at the former time, provided it be a separate medium concludendi. However, the above conclusions did not assist the pursuers in the instant case. For, when one asked what was litigated and what was decided in the first action, the answer was that it was decided that Dr R and Dr T were not liable for the tenant's obligations under and in terms of the lease. Whether that decision would have been reached if parties had organized the progress of the action in a different way might be open to question. But, the plea of res judicata was not concerned with whether the earlier decision was right or wrong. Counsel for the pursuers was correct in her assertion that the pursuers were not allowed to advance a case that Dr R and Dr T were liable on the basis that the partnership had been dissolved in 2002.
But such a case would not have altered the legal basis of their claim, namely that liability arose under clause 1.3(j) of the lease. If the pursuers had been allowed to argue an esto case in the first action, they would simply have pursued the same legal claim on a different factual basis. The pursuers had all the facts to support that case available to them. In the context of the plea of res judicata, a pursuer could bring forward a different factual basis for the same legal claim in a new action only if he could not with reasonable diligence have been aware of the facts when he conducted the first action. There must be res noviter veniens ad notitiam. In this case there was not.
The pursuers' alternative case that the defenders were liable as guarantors under schedule 4 to the lease which set out the covenants of a guarantor did not allow the pursuers to escape the plea of res judicata.
The defenders incurred liability under clause 1.3(j) of the lease and if the guarantee had been intended to bind Dr R and Dr T, it added nothing material to their liability under that clause. It was not a different ground of action. In any event, the schedule was not intended to bind the defenders but to provide the covenants which would be made if a third party guarantor were required. The persons defined as the tenant in the heading of the lease were Dr H and Dr R, the original partners, and their permitted successors and assignees and not the partnership as a separate entity under Scots law.
Thus, where in schedule 4 the guarantor undertook obligations along with the tenant, it appeared that the parties must have envisaged the guarantor to be a person or persons other than the defenders. The court was therefore satisfied that the defenders had no separate liability as guarantors under the schedule which would enable the pursuers to elide the plea of res judicata.
Phosphate Sewage Co v Molleson (1878) 5 R 1125 and (1879) 6 R (HL) 113, Glasgow and South Western Railway Co v Boyd and Forrest 1918 SC (HL) 14 and Grahame v Secretary of State for Scotland 1951 SC 368, 1951 SLT 312 applied.
The first and second defenders would be granted decree of absolvitor. The case against the third defender remained. The case would be put out by order to determine any further procedure in the action so far as directed against him.
Gordon McBain MA, Solicitor
Published date: 26/03/2009
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