BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable RTF version]
[Help]
Case
No:CCRTF 1999/0958/2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WILLESDEN COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 8 March 2000
B e f o r e :
LORD JUSTICE BELDAM
LORD JUSTICE OTTON
and
LORD JUSTICE JUDGE
|
LONDON
BOROUGH OF BRENT
|
Appellant
|
|
-
and -
|
|
|
OLOMUYIWA
BOTU
|
Respondent
|
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr Bryan McGuire (instructed by Paul Barber) for the Appellant
Mr Andrew Short (instructed by JR Jones) for the Respondent
- - - - - - - - - - - - - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
LORD JUSTICE JUDGE:
This is an appeal by the London Borough of Brent (Brent) against the order of
His Honour Judge Hornby at Willesden County Court on 11th December when he held
that Brent was liable to compensate the plaintiff for breach of the covenant of
quiet enjoyment of his tenancy of premises at 93 Taylor's Lane London NW10
9JJ.
The origins of the dispute are to be found in Brent's grant to the plaintiff in
October 1991 of a secure tenancy of the premises. A covenant of quiet
enjoyment was implied. The plaintiff had the advantage of the statutory
protection provided by s82 of the Housing Act 1985. His tenancy would continue
until the court granted Brent an order for possession, and such an order would
not be forthcoming unless one or more of the specified grounds in the 1985 Act
were established.
In the meantime, in common with other authorities responsible for housing the
homeless, Brent no doubt had rather less accommodation than they required to
satisfy the needs of those for whose accommodation they were responsible.
In December 1996 the plaintiff was arrested for matters quite unconnected with
this case, and remanded in custody. In April 1997 Brent issued a notice
seeking an order for possession on the ground of arrears of rent. There was
some dispute about when and in what circumstances Brent became notified of the
plaintiff's difficulties, although it looks as though the first such intimation
was given after the relevant notice. Proceedings were issued on 19th June. On
14th July, in the absence of the plaintiff, at Willesden County Court, Brent
was granted an unsuspended possession order of the premises, to take effect on
11th August, together with a money order representing the arrears of rent.
(the original order)
On 11th August the plaintiff was in hospital after a very unpleasant incident
in prison, the details of which are unimportant. When he was released on bail
he discovered that the original order had been made. He began efforts to
persuade Brent not to initiate any further action which might prejudice an
application to have the judgment set aside. By letter dated 30th September
Brent informed the plaintiff's solicitors that "a warrant has been applied for
and we are awaiting a date from the County Court Bailiff". They made an
immediate application for legal aid to apply for an order to suspend any
warrant. Before that application was decided, on 22nd October, the eviction
was carried out. The response of the plaintiff's solicitors to the news that
the eviction had taken place was to inform Brent that an application would be
made to set aside the original order.
Nevertheless the property was now empty, and in demand. It was viewed a few
days later by a Mr Ahmed, and on 29th October he signed a pre allocation form,
or pre letting agreement. Although the document was not binding in law and
expressly provided Brent with the right to withdraw from the offer "in
exceptional circumstances", the Council acted as if it were honour bound to
perform its side of the bargain.
On 31st October the plaintiff's solicitors notified Brent that they had issued
an application to set aside the original order. Told that a pre allocation
agreement had already been made and that the proposed tenant would sign it on
4th November, they requested Brent to take no further steps until the
conclusion of the hearing of the application to set aside the original order.
This request was confirmed by fax in which it was commented that "it is not too
late to preserve the position as it is, pending a full hearing of the matter at
court. We request that you act immediately to prevent a new tenancy of the
property". No assurances were forthcoming. To the contrary, Brent's
solicitors wrote that "the property has already been pre allocated to a
prospective tenant. This was done before we had notice of your application".
On 4th November the plaintiff's solicitors informed Brent that an application
would be made that afternoon to restrain the proposed reletting of the
property. An advocate on behalf of Brent went to court. There he was told that
no injunctive order had been made. The tenancy agreement with Mr Ahmed was
signed at about 2.30 p.m. This was a secure tenancy for the purposes of the
1985 Act, subject to precisely the same protection as those which had formerly
applied to the plaintiff's tenancy.
Shortly afterwards, unaware of this fact, His Honour Judge Lowe granted the
plaintiff's application for an injunction that Brent should be prohibited "from
taking any further steps whether by its servants, agents, officer or otherwise
to relet the property ....". The date for the hearing of the application to
set aside the original order was fixed for 21st November.
On 5th November the judge was informed of everything that had happened on the
previous afternoon, including the making of the new tenancy agreement.
Accordingly he discharged the injunction against Brent.
On 21st November the plaintiff's application to set aside the original order
was heard by Judge Lowe. The order as drawn up reads simply that "the order
for possession on 14th July 1997 be set aside" (the setting aside order). What
the form of judgment does not show was that the plaintiff's representative
asked the judge to make an order that the plaintiff should be reinstated at
Taylor's Lane. The judge refused to deal with such an application when he was
hearing an application to set aside the possession order. The way in which
this issue was ventilated before Judge Hornby in December 1998 is summarised in
his judgment.
"I am told by Mr McGuire, and Mr Short, I think, does not disagree, that there
was also an application made before His Honour Judge Lowe, an application by
the plaintiff, Mr Botu, for reinstatement into the premises...... I am not
aware of precisely what material was put before the court, but I think counsel
agree, and it is reasonable to infer that the court was of the view that given
that Mr Ahmed had been in possession of the property since 4th November that it
would not be right ...... to grant any relief where third party rights would,
or could, be substantially prejudiced. There was, as far as I can see, no
formal application referred to, but I accept that indication or finding was
made.
So, in summary, an application was made for reinstatement which Judge Lowe
thought it inappropriate to decide. The application was not subsequently
renewed. Instead Mr Ahmed continued to enjoy his tenancy at Taylor's Lane, and
after temporary accommodation had been found for the plaintiff, on 3rd July
1998 he was granted a tenancy at an alternative address.
Arising from those facts, the plaintiff began proceedings for damages against
Mr Ahmed and Brent. The crucial allegation in the pleaded case, and in effect
the foundation of these claims, was that as a result of the setting aside order
on 21st November the plaintiff was and had been entitled to exclusive
possession of the premises from 14th July 1997, when the original order for
possession was made, until 3rd July 1998, when his new tenancy was granted.
The claim against Mr Ahmed alleged that he was a trespasser on the plaintiff's
premises. Before Judge Hornby this claim was discontinued. The claim against
Brent for damages for breach of the covenant of quiet enjoyment was upheld in
relation to the period from 21st November 1997 until alternative accommodation
was provided and rejected for the earlier period.
Brent appeals against the finding of liability, and the plaintiff cross
appeals, with permission, out of time, against the conclusion that breach of
covenant prior to 21st November had not been established. In summary, the
question for decision before Judge Hornby, and before us, is whether the
setting aside order had the effect of resuscitating the secure tenancy which
the original possession order, and subsequent execution by eviction, had
apparently brought to an end.
An order setting aside the court's own previous decision under Ord37 of the
County Court Rules is said by Mr Andrew Short, relying on the observations of
May LJ in Peabody Donation Fund v Hay [1986] 19 HLR1 145, to render the
original order "null and void". In other words, Mr Short contended, the legal
position of each party reverted to what it had been immediately before the
original order was made. On this basis Mr Short mounted a powerful argument
that the revival, as he put it, of the plaintiff's tenancy, entitled him to
damages for breach of the covenant of quiet enjoyment arising from his
inability to enter and use the premises at his home because Mr Ahmed had been
granted and assumed the rights of the tenant of the premises.
Mr Short drew an analogy between Ord37 of the County Court Rules and the
provisions of s85 of the 1985 Act, by which the court is granted jurisdiction
to discharge or rescind an order for possession. He contended that the
plaintiff's tenancy should be treated as if it had been "in limbo" in the sense
described by Lord Browne-Wilkinson in Burrows v Brent London Borough
Council [1996] 1 WLR 1448. (see also London Borough of Lambeth v
Rogers, unreported, 29th October 1999, where the tenant remained in
occupation as a "tolerated trespasser"). When these tenancies were revived
they took effect as if there had been no break in the tenancy and subject to
the original covenants, which accordingly were enforceable.
In my judgment the authorities do not reinforce Mr Short's main argument. If
the effect of the setting aside in the present case were to mean that all the
events after 14th July were deemed not to have occurred, then the submission
derives no additional weight from the authorities, neither of which was a case
where, as here, the tenant had been lawfully evicted from the premises in
accordance with an order of the court granting the landlord possession. As Mr
Short accepted, without a successful appeal against the order, or a stay
pending appeal, or an order to set it aside, the plaintiff's secure tenancy had
been brought to an end and the order for possession enforced by his eviction.
The setting aside order, and its effects, provided the significant features of
his argument.
Mr McGuire, by contrast, examined the relevant events chronologically,
demonstrating that the plaintiff's tenancy was lawfully brought to an end by a
regular judgment, and that after, and not before, execution, when it was no
longer subsisting, Mr Ahmed's new secure tenancy was lawfully created.
Analysed in this way, the logical conclusion of Mr Short's argument would be
that these premises were the subject of two secure tenancies under the 1985
Act, each simultaneously providing identical, but mutually contradictory rights
between two separate individuals. This would be a nonsense. The effect of the
statutory provisions governing Mr Ahmed's tenancy is such that the priorities
between the conflicting claims cannot be determined simply by asking which of
the tenancies came first, and jumping to the conclusion that the second
tenancy must have taken effect subject to the plaintiff's, at best, dormant
entitlement to revive his tenancy by a successful application to set aside the
original order, or a successful appeal. The decision not to proceed with the
claim for trespass against Mr Ahmed was right. He enjoyed an immediate right
to possession of the premises. He also enjoyed the benefit of the covenant of
quiet enjoyment. Despite Mr Short's argument, I cannot envisage the basis on
which Brent could possibly owe an obligation to the plaintiff concurrently to
abide by the same covenant of quiet enjoyment in respect of the same premises.
In Hillgate House Limited v Expert Clothing Service & Sales Limited
[1987] 1 EGLR 65 Sir Nicholas Browne-Wilkinson VC was asked to decide a
preliminary issue in the following terms:
"Can an action for trespass, and/or breach of covenant for quiet enjoyment,
and/or derogation from grant, be maintained by a tenant against his landlord
who has entered on to demised premises and excluded the tenant therefrom
following the making of an order for possession in forfeiture proceedings by a
High Court judge whose decision is subsequently reversed by the Court of
Appeal?"
He answered the question in the negative. He based his decision on the effect
of the Court of Appeal's judgment.
"Once the Court of Appeal had spoken, the true position which had existed
throughout was disclosed ..... On analysis what the plaintiffs are claiming in
this case is that the acts done by them, the tenants, and by the landlords,
directly pursuant to the order of the trial judge, themselves constitute a
breach of legal duty which gives rise for the first time to a cause of action.
In my judgment, that cannot be right. ... When an order is in force, and so
long as it is in force, it is to be obeyed and is in law correct. It is true
that it may be all subsequently altered on appeal; but unless and until it is
altered, it is an order of the court and acts done under it are lawful."
He then turned to deal specifically with the claim based on the alleged breach
of covenant for quiet enjoyment, concluding
"Since the landlords were acting under an order of the court, any interruption
was lawful at the time it took place and cannot retrospectively be made
unlawful."
Hillgate concerned an appeal, the present case, an order by a court
setting aside its own earlier order. In my judgment Hillgate is
indistinguishable. Like the landlord in Hillgate, the landlord here was
acting on the basis of a valid existing order of the court. My conclusion is
reinforced by the decision in Isaacs v Robertson [1985] AC 97, itself
referred to and relied on by the Vice Chancellor in Hillgate.
The principle described by Lord Diplock as "short and well established" is that
an order "made by a court of unlimited jurisdiction ..... must be obeyed unless
and until it has been set aside by the court". Later, when he recorded the
distinction between orders set aside on application to the court which made
them and those set aside by an appellate court, he did not suggest that these
distinctions had any relevant bearing or imposed any gloss on the principle.
This is entirely consistent with the familiar field of interlocutory
injunctions granted ex parte. An injunction may be discharged by an
application to the court which made the original order. If that court decides
that the injunction should not be discharged then, if necessary, the issue is
resolved in the Court of Appeal. The order must be obeyed unless and until it
is discharged.
Hillgate was not concerned with the rights properly accruing to a third
party. In the period after the order for forfeiture was made by the High Court
judge and the subsequent reversal of his decision in the Court of Appeal, no
new lease was granted. The landlords simply entered the premises. Where, as
here, the interests of a third party become involved, emphasis is added to what
the Vice Chancellor identified as
"the risk of very great confusion. People must be entitled to act in pursuance
of a court order without being at risk that they are thereby acting unlawfully.
Public policy requires it".
Mr Short pointed out that the setting aside order is available to defeat the
judgment for rent arrears. No doubt he is right, although perhaps its value to
the plaintiff is slightly more limited than Mr Short appeared to acknowledge.
The order does not constitute a finding that rent arrears were not due to
Brent. That question remains open. Merely because the claim for damages for
breach of covenant may be unsustainable, it does not follow that the court
would be precluded from reconsidering the money judgment for rent arrears.
Either he owed the rent or he did not. If he did not he should not be liable
to pay it. If he did, then, in the absence of some lawful excuse, he should
be. The question whether the plaintiff should continue to be liable for rent
arrears is quite distinct from the issue currently under consideration, that
is, whether he is entitled to succeed with a claim for damages for breach of
covenant.
As the Vice Chancellor explained in Hillgate he was not
"casting doubt on ..... those cases .... which indicate that where a judgment
is reversed, the objective of the court should be to put back the litigants
into the position in which they should all along have been had the law been
properly appreciated.... Those cases are concerned with reimbursing to the
parties moneys lost as a result of the execution of the judgment by the payment
of money. They are not cases, such as the present, in which it is sought to
found a separate cause of action on the carrying out of the court order".
In deference to Mr Short's argument, I should deal with the comment by May LJ
in Governors of the Peabody Donation Fund v Hay that an order to set
aside an earlier judgment rendered it "null and void". The question under
consideration was whether the "County Court has jurisdiction or power to set
aside a warrant of possession after it has been completely executed when
setting aside the judgment by virtue of which that warrant was issued by way of
execution". The distinct question which arises in this case, whether a landlord
might be liable to his tenant for breach of a covenant of quiet enjoyment
during a period when the landlord was in possession of the premises in
accordance with an order of the court was not under consideration. There is
nothing in the judgment to suggest that May LJ envisaged the possibility that
liability could be established for actions carried out under the authority of
the original judgment, or that the effect of an order to set aside could
nullify a properly created secure tenancy, or to create two simultaneous secure
tenancies. Certainly Mr Ahmed's tenancy, lawful at its outset, was not
rendered "null and void" by the setting aside order, and to my mind, while he
enjoyed the rights of the tenant at the premises, including the benefit of the
covenant of quiet enjoyment, the plaintiff did not.
I should add that, if I had been driven to the conclusion that the setting
aside order truly nullified the original order, I should have granted Brent
leave to appeal against the setting aside order out of time. If it had had
that effect, an order which would have destroyed Mr Ahmed's rights should never
have been made.
Accordingly this claim should fail. Brent's appeal should be allowed and the
cross appeal dismissed.
LORD JUSTICE OTTON: I agree.
LORD JUSTICE BELDAM: I also agree.
Order: Appeal allowed with costs: order nisi against legal aid
fund with nil contribution: no order as to costs in court below: legal aid
taxation: application for permission to appeal to the House of Lords
refused.
Order does not form part of the approved judgment.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/65.html
