Tilling v Whiteman

LORDS DECISIONS

LORDS DECISIONS >>

LORDS

LORD WILBERFORCELORD DIPLOCK<LORD SALMONLORD FRASER OF TULLYBELTONLORD SCARMAN

LORD WILBERFORCE

LORDS,

LORD WILBERFORCE THIS APPEAL ARISES UNDER CASE 10 OF PART II OF SCHEDULE 3 TO THE RENT ACT 1968, WHICH READS AS FOLLOWS:

LORD GAVE NOTICE IN WRITING TO THE TENANT THAT POSSESSION MIGHT BE RECOVERED UNDER THIS CASE, AND (B) THE DWELLING HOUSE HAS NOT, SINCE 8TH DECEMBER 1965, BEEN LET BY THE OWNER-OCCUPIER ON A PROTECTED TENANCY WITH RESPECT TO WHICH THE CONDITION MENTIONED IN PARAGRAPH (A) ABOVE WAS NOT SATISFIED, AND (C) THE COURT IS SATISFIED THAT THE DWELLING-HOUSE IS REQUIRED AS A RESIDENCE FOR THE OWNER-OCCUPIER OR ANY MEMBER OF HIS FAMILY WHO RESIDED WITH THE OWNER-OCCUPIER WHEN HE LAST OCCUPIED THE DWELLING- HOUSE AS A RESIDENCE."

LORD (SIC) MAY RECOVER POSSESSION OF THE PREMISES UNDER THE PROVISIONS OF CASE 10 (SUPRA).

LORDSHIPS, HAVE OFTEN PROTESTED AGAINST THE PRACTICE OF ALLOWING PRELIMINARY POINTS TO BE TAKEN, SINCE THIS COURSE FREQUENTLY ADDS TO THE DIFFICULTIES OF COURTS OF APPEAL AND TENDS TO INCREASE THE COST AND TIME OF LEGAL PROCEEDINGS. IF THIS PRACTICE CANNOT BE CONFINED TO CASES WHERE THE FACTS ARE COMPLICATED AND THE LEGAL ISSUE SHORT AND EASILY DECIDED, CASES OUTSIDE THIS GUIDING PRINCIPLE SHOULD AT LEAST BE EXCEPTIONAL

LORDS, THE LEGAL ISSUE IN THE PRESENT CASE IS NOT AN EASY ONE. CASE 10, AND SECTION 10 OF THE 1968 ACT UPON WHICH IT IS BASED, SAY NOTHING ABOUT JOINT OWNERS, OR JOINT OCCUPIERS. TO READ, OR NOT TO READ, THE SINGULAR EXPRESSIONS ("PERSON", "LANDLORD") AS INCLUDING THE PLURAL, GIVES RISE TO DIFFICULTIES, AS THE JUDGMENTS BELOW WELL DEMONSTRATE. IN MY OPINION OUR TASK MUST BE TO ATTRIBUTE THAT REASONABLY ADMISSIBLE MEANING TO THE LANGUAGE WHICH WILL BEST CARRY OUT WHAT APPEARS TO BE THE LEGISLATIVE INTENTION.

LORDS, I PROPOSE TO DO LITTLE MORE THAN TO SAY THAT, HAVING TO THE BEST OF MY ABILITY COMPARED THE WEIGHT OF THESE RIVAL ARGUMENTS, AND HAVING CAREFULLY CONSIDERED MISS WHITEMAN'S PRINTED CASE, I HAVE COME TO THE CONCLUSION THAT ON BALANCE, THE JUDGMENT OF EVELEIGH L.J. IS TO BE PREFERRED. THE ARGUMENTS IN ITS FAVOUR ARE SO CLEARLY STATED IN THE LORD JUSTICE'S JUDGMENT THAT NOTHING WOULD BE GAINED, AND SOMETHING MIGHT BE LOST, BY MY RESTATING THEM IN MY OWN LANGUAGE. I WILL ONLY ADD TWO OBSERVATIONS.

LORD. BUT CASE 10, AND THE POLICY BEHIND IT, IS NOT, IF I MAY PERSONALISE, INTERESTED IN THE LANDLORD: HE IS NOT, AS SUCH, THE KEY FIGURE: THAT IS THE "OWNER-OCCUPIER". THIS CONSIDERATION, TO MY MIND, PROVIDES JUSTIFICATION FOR AVOIDING A STRICT INTERPRETATION OF THE WORDS "LET IT ON A REGULATED TENANCY"�THE WORDS WHICH MAINLY, IF NOT WHOLLY, SUPPORT THE ARGUMENT THAT ONE OF TWO OR MORE JOINT OWNERS CANNOT SATISFY THE CASE UNLESS THEY BOTH ALSO REQUIRE TO RESIDE IN THE HOUSE. I FIND IT THEREFORE POSSIBLE TO SAY THAT MRS. TILLING, BEING AT THE TIME THE OCCUPIER, WHEN SHE DECIDED TO GO TO LIVE ELSEWHERE FOR A TIME, LET HER HOUSE ON A REGULATED TENANCY, EVEN THOUGH, FOR THE LETTING TO BE EFFECTIVE, MISS DOSSETT HAD TO JOIN IN. THIS INTERPRETATION MIGHT, TO A CONVEYANCER, APPEAR LOOSE, BUT IS ONE WHICH MIGHT EASILY APPEAR IN COMMON PARLANCE. FOR THE REASONS I HAVE GIVEN I DO NOT THINK THAT THE STRICT CONVEYANCING MEANING IS INTENDED TO BE IMPOSED.

LORD FOR OCCUPATION AS A RESIDENCE FOR (A) HIMSELF ..." HERE THERE IS AN IDENTITY BETWEEN THE PERSON WHO HAS LET THE HOUSE AND THE PERSON WHO REQUIRES IT. THERE MUST THEN BE GREAT STRENGTH IN THE ARGUMENT THAT IF FOR ONE PURPOSE THE PLURAL IS DEEMED TO BE INCLUDED IN THE SINGULAR, SO IT MUST FOR THE OTHER�PLURAL LANDLORDS MUST REQUIRE THE HOUSE FOR THEMSELVES, NOT FOR ONE OF THEM. THIS WAS THE ARGUMENT ACCEPTED BY THE COURT OF APPEAL IN MCINTYRE'S CASE. BUT ASSUMING THE CORRECTNESS OF THIS (AND I AGREE THAT THE QUESTION REMAINS OPEN IN THIS HOUSE), THE ARGUMENT UNDER CASE 10 IS DIFFERENT. THERE IS NO IMPOSED IDENTITY BETWEEN OCCUPIER AND LANDLORD: THERE MAY BE A PLURALITY OF LANDLORDS, BUT ONLY ONE OCCUPIER, AND IT MAY BE POSSIBLE TO SAY THAT ONE OF THESE LANDLORDS HAS LET. I FIND THEREFORE NO NECESSITY, OR INDEED ATTRACTION, IN FOLLOWING THE EARLIER CASE.

LORD DIPLOCK

LORDS,

LORD WILBERFORCE. FOR THE REASONS THAT HE GIVES I AGREE THAT THE APPEAL SHOULD BE ALLOWED.

LORD SALMON

LORDS,

LORD MAY RECOVER POSSESSION OF THE PREMISES UNDER THE PROVISIONS OF CASE 10 OF PART II OF SCHEDULE 3 TO THE RENT ACT 1968.

LORDS AND BENEATH IT THERE WAS AN ACKNOWLEDGMENT OF ITS RECEIPT SIGNED BY MISS WHITEMAN. MISS WHITEMAN HOWEVER FAILED TO DELIVER UP POSSESSION OF THE COTTAGE AT THE EXPIRATION OF THE TWO YEAR TERM AND STILL CONTINUES TO RESIDE THERE. ON 4TH MARCH 1977 MRS. TILLING AND MISS DOSSETT BEGAN PROCEEDINGS IN THE CANTERBURY COUNTY COURT AGAINST MISS WHITEMAN FOR POSSESSION OF THE COTTAGE AND MESNE PROFITS. PARAGRAPH 4 OF PARTICULARS OF CLAIM STATED THAT THE COTTAGE WHICH WAS JOINTLY OWNED BY THE PLAINTIFFS HAD FORMERLY BEEN OCCUPIED BY THE PLAINTIFFS AS THEIR RESIDENCE AND IS NOW REQUIRED AS A RESIDENCE FOR THE FIRST PLAINTIFF.

LORDSHIPS' HOUSE AGAINST THE DECISION OF THE COURT OF APPEAL.

LORD WOULD BE ENTITLED TO RECOVER POSSESSION OF A DWELLING-HOUSE WHICH IS FOR THE TIME BEING LET ON OR SUBJECT TO A REGULATED TENANCY, THE COURT SHALL MAKE AN ORDER FOR POSSESSION IF THE CIRCUMSTANCES OF THE CASE ARE AS SPECIFIED IN ANY OF THE CASES IN PART II OF SCHEDULE 3 TO THIS ACT."

LORD GAVE NOTICE IN WRITING TO THE TENANT THAT POSSESSION MIGHT BE RECOVERED UNDER THIS CASE, AND

LORD" IN PARAGRAPH (A) OF CASE 10. I WILL ASSUME THAT THESE WORDS MAY BE READ AS "THE LANDLORDS" WHEN, AS IN THE PRESENT CASE, THERE IS MORE THAN ONE LANDLORD. THIS, HOWEVER, DOES NOT, IN MY VIEW, ASSIST MISS WHITEMAN. PARAGRAPH (A) WAS COMPLIED WITH SINCE THE NOTICE TO THE TENANT WAS, IN FACT, SIGNED BY BOTH THE LANDLORDS. IT FOLLOWS, THEREFORE, THAT

LORDSHIPS CAN TAKE. I AM EXTREMELY DISTURBED THAT SUCH A HEAVY FINANCIAL BURDEN SHOULD FALL UPON MISS WHITEMAN'S SHOULDERS, PARTICULARLY AS IT WOULD HAVE BEEN AVOIDED HAD SHE OBTAINED LEGAL AID: IT MAY BE THAT THE LAW SOCIETY WILL WISH TO CONSIDER WHETHER THERE ARE ANY CIRCUMSTANCES WHICH MIGHT JUSTIFY THE ORDER AS TO COSTS NOT BEING ENFORCED.

LORD FRASER OF TULLYBELTON

LORDS,

LORD".

LORD SCARMAN

LORDS,

LORD WILBERFORCE. I AGREE WITH IT. I WOULD ALLOW THIS APPEAL FOR THE REASONS GIVEN BY EVELEIGH L.J. IN HIS DISSENTING JUDGMENT. I ALSO AGREE THAT THE APPELLANT SHOULD HAVE HER COSTS BEFORE THIS HOUSE AND IN THE COURT OF APPEAL.

LORDSHIPS' DECISION ALLOWING THE APPEAL WOULD NOW BE FINAL. AS IT IS, THE CASE HAS TO GO BACK TO THE COUNTY COURT TO BE TRIED. PRELIMINARY POINTS OF LAW ARE TOO OFTEN TREACHEROUS SHORT CUTS. THEIR PRICE CAN BE, AS HERE, DELAY, ANXIETY, AND EXPENSE. SECONDLY, IT IS A TRAGEDY THAT MISS WHITEMAN, WHO HAS APPEARED IN PERSON IN THE COURT OF APPEAL AND BEFORE THIS HOUSE BECAUSE OF THE EXPENSE OF LEGAL REPRESENTATION, WAS NOT LEGALLY AIDED. SHE HAD AN EMINENTLY ARGUABLE CASE AND, IF LEGALLY AIDED, WOULD HAVE BEEN PROTECTED AGAINST THE BURDEN OF COSTS WHICH UNDER OUR LAW FALLS UPON THE UNSUCCESSFUL LITIGANT. PERHAPS SHE WAS ABOVE THE VERY MODEST LIMITS SET TO ELIGIBILITY FOR LEGAL AID. BUT THERE ARE INDICATIONS THAT SHE CHOSE NOT TO APPLY. I WONDER WHETHER SHE FULLY UNDERSTOOD THE PROTECTION OFFERED A LITIGANT BY LEGAL AID. SURELY THOSE WHO HELPED HER WITH ADVICE (AND SHE DID HAVE ADVISERS, LEGAL AND LAY, AT VARIOUS TIMES) MIGHT HAVE PERSUADED HER. PERHAPS THEY TRIED AND FAILED. BUT THE RESULT, WHATEVER ITS CAUSE, IS A FINANCIAL DISASTER FOR HER.