Skinner and another v Cooper and another

Rent (Agriculture) Act 1976–Scope of transitional provisions–Difference of opinion in the Court of Appeal–Effect of events before January 1 1977–Claim by owner of cottage for possession against widow of former farmworker–Farmworker and wife permitted by previous and present owners to remain in cottage after termination of worker’s employment with previous owner through illness–Move to adjoining cottage by arrangement–Widow remained in cottage for some years after husband’s death–No rent paid to previous owner after termination of employment or to present owner–Notice to quit given to widow after January 1 1977 when relevant provisions of 1976 Act came into force–How far back the transitional provisions of Schedule 9 were to be taken to apply in deeming the Act to have been in force–Meaning of ‘at all material times’–Broader view of majority and narrower view of Eveleigh LJ, dissenting–Order for possession against widow set aside, but she may face an alternative claim in county court This was an appeal by Mrs Lillian Cooper, widow of Albert Cooper, from a decision of Judge Deane at Sittingbourne County Court granting an order for possession in favour of the plaintiff in the action, Wilfred James Skinner, in respect of a dwelling-house at 6 Paradise Cottages, Lower Road, Hartlip, Sittingbourne. Amanda Barrington-Smyth (instructed by Allan Jay & Co, agents for C Stuart Fisher, of Gillingham, Kent) appeared on behalf of the appellant; Sebastian Neville-Clarke (instructed by Amery-Parkes & Co, agents for Winch, Greensted & Winch, of Sittingbourne, Kent) represented the respondent. Giving judgment MEGAW LJ said: This appeal is concerned with the meaning of the transitional provisions in the Rent (Agriculture) Act 1976, to which I shall refer as ‘the Act.’  It is an appeal from the judgment of Judge Deane, in the Sittingbourne County Court, delivered on September 26 1978 whereby he granted an order, in favour of the plaintiff, Mr Wilfred James Skinner, against the defendant, Mrs Lillian Cooper, for possession of a dwelling-house, 6 Paradise Cottages, Lower Road, Hartlip, Sittingbourne. The defendant is the widow of Mr Albert Cooper. On January 1 1977, the date of coming into force of the relevant provisions of the Act, she was the occupant of the cottage, 6 Paradise Cottages. She had been born in 5 Paradise Cottages and had lived all her life either in it or no 6. She is the daughter of Mr Attwood, who had been a farmworker, employed as such by the elder Mr Goodhew, a farmer, who owned the cottages. Mrs Cooper’s husband, Mr Albert Cooper, was also a farmworker who was employed as such, first by the elder Mr Goodhew, and on his death by his son, who thereafter owned and operated the farm and owned the cottages. During the whole of the time that Mr Albert Cooper lived in the cottage he did not make, nor was he expected to make, any payment, nor was there any deduction from his wages, in respect of his occupation. In 1968 Mr Cooper fell ill. In April 1969, when it became clear that because of his illness he would not be able to work again, Mr Goodhew terminated his employment. But he allowed Mr and Mrs Cooper to continue to live in the cottage, free of payment. In October 1972 Mr Goodhew sold 5 and 6 Paradise Cottages to Mr Skinner, the plaintiff in the action. Mr Goodhew asked Mr Skinner to allow the Coopers to stay on, particularly because of Mr Cooper’s illness. Mr Skinner agreed, by way of what he described as ‘a gentleman’s agreement.’  Presumably he told Mr Cooper of his consent. The permission which he gave was related to the period of Mr Cooper’s illness. Mr Skinner was a builder, not a farmer, and, of course, Mr Cooper because of his illness no longer did farm work. There was no relation of employer and employee between them. In October 1973 Mr Albert Cooper died. Mr Skinner renovated and sold 5 Paradise Cottages. Mr and Mrs Cooper and their family had by arrangement removed to no 6. If the Act otherwise applies, this move from one cottage to the other does not matter. Because of a provision of the Act, facts which would have been revelant as affecting the question of protection in respect of no 5 would remain equally relevant in respect of the occupation of no 6. This is common ground. After Mr Cooper’s death, Mrs Cooper offered payment, but Mr Skinner did not accept her offer. From then, October 1973, until May 1977, when Mr Skinner gave Mrs Cooper notice to quit, Mrs Cooper continued to live in the cottage. Mrs Cooper did not give up possession as a result of the notice. Mr Skinner then brought an action for possession in Sittingbourne County Court. The defence, so far as is relevant for this appeal, was based on the Act. For the plaintiff it was contended that the Act did not give the defendant security of tenure. It was further contended that, if it did, the plaintiff was entitled to rely on Case IX in Schedule 4 to the Act, asserting that the cottage was required as a residence for Mr Skinner’s mother. This latter issue was left undecided in the county court, for reasons which I need not go into. The parties agree that, if this appeal should be decided in favour of the defendant, the plaintiff would be entitled to have that further issue heard and decided in the county court. I say no more about it. Judge Deane accepted the submissions on behalf of the plaintiff and held that the transitional provisions of the Act did not avail the defendant. From that judgment this appeal is brought. There is no doubt that the Act, by reason of the transitional provisions, referred to in section 40(3) and contained in Schedule 9, provides that in certain circumstances the right of the occupant of a dwelling-house to have the protection of the Act against an order for possession at the instance of the owner of the dwelling-house is to be decided, if a dispute arises, on the hypothesis that the Act, which came into force on January 1 1977, had been in force earlier than that date. To put it another way, the Act, in certain cases, is, by its own terms, to be deemed to have been in force before it was enacted. The question in this appeal is how far back the court is to go in deeming the Act to have been in force. If the Act had not been enacted, or had not been given retrospective effect, Mrs Cooper would have had no security of tenure. She could have been evicted on the termination of her licence to occupy, which would have required no more than reasonable notice. The Rent Acts would not have applied. The notice actually given in this case in May 1977 would have been effective. Apart from the Act, the legal position would have been the same for Mr Cooper at any time during his lifetime as it was for Mrs Cooper after his death. It would have been the same for the occupant of the cottage while it was owned by Mr Goodhew as it was after Mr Skinner bought it. I shall now trace the position as it would have been if by reason of the terms of the Act it is to be deemed to have been113 in force at all times at which facts occurred or existed which, if they had all happened after the coming into force of the Act, would have been relevant to the question whether or not Mrs Cooper would have the protection of the Act. For the plaintiff it is conceded that, if that be the right hypothesis on the true construction of Schedule 9, then the claim for possession, so far as this appeal is concerned, fails. But the plaintiff contends that the Act does not require or entitle the court to go back so far in deeming the Act to have been in force. On the true construction, it is contended, the retrospective effect must be treated as being more limited. It is not necessary to go further back than the year 1968. Suppose that the Act had then been in operation. In 1968, before his illness, Mr Albert Cooper occupied the cottage under a licence from his employer, Mr Goodhew. Mr Cooper was a ‘qualifying worker’ under Schedule 3 paragraph 1. He fulfilled all the conditions for being a ‘protected occupier in his own right’ under section 2(1) of the Act, and thus would have had the security of tenure provided by the Act. After his employment was determined by Mr Goodhew in April 1969, because of his continuing illness, Mr Cooper had a fresh licence to occupy, which was a ‘relevant licence.’  Mr Cooper continued as a protected occupier because of section 2(2) or (3). It does not matter which. In October 1972, when Mr Goodhew sold the cottages to Mr Skinner, Mr Cooper obtained a new licence, which was a ‘relevant licence’ from Mr Skinner. The old licence automatically terminated by reason of the change of ownership. But that change of ownership and change of licence in no way affected Mr Cooper’s status. It was, for example, not affected by any express or implied condition of the licence, such as that the licence was only to continue for the duration of Mr Cooper’s illness. The Act being deemed to be in force at that time (the hypothesis on which I am for the moment proceeding), there could be no question of Mr Cooper contracting out of the protection of the Act, any more than a protected tenant under the Rent Acts can contract out: Brown v Draper [1944] KB 309. Nor are there any facts in this case which could be relied on as bringing into operation Case VII of Schedule 4 to the Act, as counsel for the plaintiff at one stage sought to argue before us. The final stage, on the hypothesis of the Act having been in force, is as follows. When Mr Cooper died in October 1973 Mrs Cooper, the defendant, became a ‘statutory tenant’ by virtue of section 4(2) and (3) of the Act. She so remained at the ‘operative date,’ January 1 1977, and thereafter at the date of the notice to quit, of the hearing of the action and of the judgment. We had much argument upon the wording of paragraph 2 of Schedule 9. In my opinion, it is not relevant in this case. That is because it is, by its terms, applicable to the question whether a person is, on or after the operative date, a protected occupier. There is no question here of Mrs Cooper being a protected occupier. If the Act gives her any status, it is that of a statutory tenant. The relevant provision of Schedule 9 is, therefore, paragraph 3. Paragraph 3 reads: Statutory tenancy arising on operative date. A person who is occupying a dwelling-house as his residence on the operative date shall become the statutory tenant of the dwelling-house if, on the assumption that this Act and the provisions of the Rent Act 1968 which are applied by Schedule 2 to this Act, including (where relevant) any amendments to those provisions, were in force at all material times before that date, he would be a statutory tenant of the dwelling-house on that date, and this Act shall thereafter apply to him, and by reference to him, on that assumption. The question which we have to decide is: what is meant by the phrase ‘at all material times’ in that paragraph?  To my mind, the phrase is, in that context, capable of one meaning only. It is not ambiguous. ‘At all material times’ means at all times when any fact existed or event occurred which, if the Act had been in force at the time, and thereafter, would have been relevant for the decision of the question with which the paragraph is concerned. That question, made specific to the present case, is whether Mrs Cooper, who was occupying the cottage as her residence on the operative date, is the statutory tenant. I am unable to see how any point or period of time can be an immaterial time for the purpose of that question, if the answer to the question would be different according to whether you include or exclude reference to that point or period of time. Accordingly, in my judgment, the foundation is not laid for the argument here adduced on behalf of the plaintiff. That argument is that where a statute has retrospective effect, as this Act admittedly has, it should be given as limited an effect as is possible without doing violence to the words used in the statute: Lauri v Renad [1892] 3 Ch 402, per Lindley LJ at p 421. I should have thought that it was ‘doing violence to’ the words of the statute if one were to adopt the meaning of ‘at all material times’ put forward on behalf of the plaintiff: that is, that the ‘material times’ are limited to the period of time necessary to take one step back; that you cannot go further back than the beginning of the particular licence under which the occupant was occupying at the moment of the attempted termination of that licence. The submissions to this effect were actually made by reference to paragraph 2(3) of Schedule 9. As I have said, in my view that paragraph is not applicable here. I am not clear how it was sought to apply the submission which was developed in relation to that paragraph to the paragraph of the schedule with which we are concerned, paragraph 3. I cannot see any rational basis for the suggested limitation of meaning of the phrase ‘at all material times’ in that paragraph. I am also of the opinion that there is a sound basis for Miss Barrington-Smyth’s submissions on behalf of the defendant that the retrospective effect which is created by this Act is not the type of retrospective effect which involves or requires the application of some specially strict criterion of construction so as to impose the maximum limitation on the scope of the words. In the present case Mr Skinner could have terminated Mrs Cooper’s licence by obtaining and executing an order for possession at any time before January 1 1977. If it had been suggested that the Act provided for a reversal or variation of such a lawfully completed transaction, it would have been right to apply a very strict test before accepting that that was the effect of the Act. But it is not suggested that the Act has such an effect. It merely has the effect, which many statutes have, of altering the pre-existing law in such a way as to destroy or vary, upon and after the passing of the Act, some legal right which previously existed. However that may be, I would decide this appeal on the basis that ‘at all material times’ in paragraph 3 of Schedule 9 means at all times in the past at which any fact existed or event occurred which, if the Act had been in force at that time and thereafter, would have been relevant for the decision of the question with which the paragraph is concerned: namely whether on and after January 1 1977 Mrs Cooper has been a statutory tenant under the Act. I would therefore allow the appeal and set aside the order for possession. But, because of the matter which I mentioned earlier, as to a possibly outstanding issue in the county court, the action will have to be restored in that court if the plaintiff desires to pursue the alternative basis of his claim for possession. WALLER LJ delivered a judgment agreeing that the appeal should be allowed. Dissenting, EVELEIGH LJ said: Mr Cooper worked wholetime in agriculture. He was provided with a cottage by his employer Mr Goodhew. In 1968 he fell ill and did no more work. In 1969 his employment was terminated, but he and his family continued to live in the cottage rent-free. In 1972 Mr Goodhew sold the cottage to the plaintiff, a builder, and asked him to allow the Coopers to stay on, particularly in view of Mr Cooper’s illness. In 1973 Mr Cooper died. Mrs Cooper continued to live in the cottage. She offered to pay rent to Mr Skinner but he would not accept it. In 1977 the plaintiff served notice to quit. The defendant relies upon the protection of the Rent (Agriculture) Act 1976. The first ground upon which protection was claimed was on the basis of section 3(2) of the Act. That subsection comes into play when subsection (1) is fulfilled, that is to say ‘after the death of a person (‘the original occupier’) who, immediately before his death, was a protected occupier of the dwelling-house in his own right.’  After such a death a widow who was residing with him at his death becomes a protected occupier if she has a relevant licence in relation to the dwelling-house (subsection (2)). The relevant licence relied upon in the present case is said to be one from Mr Skinner to the defendant. For the purpose of this case we are not concerned with considerations which make a licence to occupy a relevant licence. Applying Schedule 2, paragraph 1, to the Act, it is clear that if her licence is treated as a tenancy and the Rent Act 1968 were modified as mentioned in Schedule 2, Mrs Cooper would have a protected tenancy for the purposes of that Rent Act. However, the fact that she might have a relevant licence from the plaintiff does not necessarily mean that she comes within the wording of subsection (2) when it says ‘. . . if the widow has, in relation to the dwelling-house, a relevant licence. . . .’  In my opinion those words require her to be a licensee at the time of the death. A licence subsequently granted does not, in my opinion, fall within the meaning of the words I have quoted. Section 3(2) in my opinion is intended to cover the case where husband and wife are joint licensees. To cover this objection it is submitted on behalf of Mrs Cooper that the licence granted by Mr Skinner to her husband was one granted to herself also. If that is correct, then Mrs Cooper did have a relevant licence and could benefit from subsection (2) if her husband was a person contemplated by subsection (1), namely ‘a protected occupier of the dwelling-house in his own right,’ and she would have to add ‘at some time.’  The defendant’s contention that her husband was a protected occupier in his own right depends upon the submission that regard must be had to the licence granted by Mr Goodhew at a time when Mr Cooper was employed by him as a farmworker. It is said that paragraph 2 of Schedule 9 entitles the defendant to treat the Act as being in force at the time of the grant of the licence by Mr Goodhew. Thus the basic question is whether or not we can treat Mr Cooper as being a protected occupier some time in 1968 or before that when the licence was granted and he was first employed as a farmworker. Reliance is placed on paragraph 2(3). In applying this paragraph to section 2(3) or to section 3 of this Act (so that the question whether a person is a protected occupier depends on whether he or another person was, at a time before the material date, a protected occupier or statutory tenant) it shall be assumed that this Act and the provisions of the Rent Act 1968 which are applied by Schedule 2 to this Act, including (where relevant) any amendments to those provisions, were in force at all material times before the operative date. It is said that the words ‘at all material times before the operative date’ are wide enough to relate back to that time. I do not think that this paragraph has the effect contended for. The whole paragraph comes into play when there is a ‘question whether at any date which is on or after the operative date a person . . . is a protected occupier’: paragraph 2(1). That question does arise and consequently we may continue to the following subparagraph. Subparagraph (2) reads: ‘So far as the question depends on prior circumstances, they shall be taken into account even if occurring before the operative date.’  In my opinion this subparagraph does not entitle the court to go back to any time it pleases for all purposes. It can only do so in so far as the status depends on prior circumstances. That means when status depends on prior circumstances made relevant by the Act. This so far as the position of the defendant on or after the operative date ‘depends on prior circumstances’–but only ‘so far as’ and not further. The circumstances must be those required to be proved in order to decide the particular question. Subparagraph (3) does not specifically by itself state that prior circumstances may be regarded whatever their nature. It must mean prior circumstances which under the Act give rise to protection. We are dealing with retrospective legislation. It must therefore be construed strictly and where possible so as not to deprive a person of his existing rights. Mr Skinner’s existing right before the Act came into operation was a right to determine the licence and claim possession. In my opinion subparagraphs (2) and (3) must be read together. The effect is that when the question whether a person is a protected occupier depends upon prior circumstances, regard may be had to those circumstances, and where section 2(3) or section 3 of the Act is invoked the Act shall be treated as though it were in force at the time of the prior circumstances upon which the question of status depends. In order to see whether the question of status depends upon prior circumstances we have to look at the wording of the relevant parts of the Act which declare what those circumstances are. Section 2(1) immediately provides an example. That provides: Protected occupiers in their own right (1) Where a person has, in relation to a dwelling-house, a relevant licence or tenancy and the dwelling-house is in qualifying ownership, or has been in qualifying ownership at any time during the subsistence of the licence or tenancy (whether it was at the time a relevant licence or tenancy or not), he shall be a protected occupier of the dwelling-house if–(a) he is a qualifying worker, or (b) he has been a qualifying worker at any time during the subsistence of the licence or tenancy (whether it was at the time a relevant licence or tenancy or not). In so far as a person has a licence and the dwelling-house is in qualifying ownership and the occupier is a qualifying worker, he is protected and no reference to prior circumstances is required. The subsection, however, refers to events in the perfect tense also: if the house ‘has been’ in qualifying ownership. In such a case, if he is a qualifying worker he may be protected by virtue of the earlier ownership even though that qualifying ownership no longer prevails. That situation may arise in the future and the qualifying ownership, while antedating the time when the question of protection falls to be considered, will none the less be material. It does not necessarily follow that the only case of earlier qualifying ownership will antedate the coming into force of the Act. If section 2(1) had stood on its own without the provisions of paragraph 2 of Schedule 9, it could be argued that the Act was only dealing with a case of precedent qualifying ownership where that ownership could be found on a date after the commencement of the Act. Paragraph 2 of Schedule 9, however, will allow qualifying ownership before the Act to be treated as an ingredient for protection whether one points to its existence before or after the commencement of the Act. Then, again, section 2(1)(b) equates the position of one who has been a qualifying worker with that of one who is a qualifying worker (section 2(1)(a)). Again, in section 2(2) we encounter the expression ‘has been in qualifying ownership’ etc. In the examples I have read so far it is possible to recognise the prior circumstances without recourse to paragraph 2(3) of Schedule 9. They are actual matters of fact. The present status of a person as a protected occupier depends not upon the legal status of himself or anyone else at an earlier date but only upon the nature of his employment and the existence of an employer as a licensor. These matters can be ascertained without the necessity of assuming that the Rent (Agriculture) Act 1976 was in force at an earlier date. However, when we come to section 2(3) a different problem arises. That section reads: 114 A person who has, in relation to a dwelling-house, a relevant licence or tenancy shall be a protected occupier of the dwelling-house if–(a) immediately before the licence or tenancy was granted, he was a protected occupier or statutory tenant of the dwelling-house in his own right, or (b) the licence or tenancy was granted in consideration of his giving up possession of another dwelling-house of which he was such an occupier or such a tenant. Thus it is necessary for the occupier to establish a protected status (depending upon the facts and law) before the grant of the licence or tenancy now relied upon. In considering that protected status, paragraph 2(3) of Schedule 9 comes into play. It comes into play because the question whether he is a protected occupier depends upon whether he or another person was a protected occupier at a time before the material date, that is, the date immediately before the relevant licence under examination was granted to him. Under section 2(3)(a) it is necessary to discover the status of the person claiming the protection of the Act immediately before his current licence was granted. It may be that the current licence was granted before the Act came into force. And therefore on the wording of section 2(3) alone he would not be entitled to protection because he could not say that he was a protected occupier at that time. Paragraph 2(3) of Schedule 9 comes to his rescue by providing that at the material time, that is to say the granting of the licence, it must be assumed that the Act was in force. In my opinion paragraph 2 does not enable the court to go back and look at the interests of other people unless those other people are specifically named as persons from whose status the person now claiming protection can derive title. The words ‘or another person’ in paragraph 2 (3) are there to cover claims under sections 3 and 4. They have no application to section 2. Section 3(1) reads: Protected occupiers by succession (1) Subsection (2) or, as the case may be, subsection (3) below shall have effect for determining what person (if any) is a protected occupier of a dwelling-house after the death of a person (‘the original occupier’) who, immediately before his death, was a protected occupier of the dwelling-house in his own right. Thus, in order to claim protection by succession it is necessary to establish that the predecessor was a protected occupier immediately before his death. If the death occurred before the commencement of the Act, paragraph 2(3) of Schedule 9 comes to the assistance of the person claiming succession. It does not, however, in my opinion come into play to give the predecessor a status which can only be established by tracing back through past events upon the assumption that the Act has always been in force. The starting point of section 3 is the status of the original occupier at the time of his death. There are no artificial provisions in the Act upon which he can go backwards to establish his status. The defendant has contended in effect that the phrase ‘at all material times’ is equivalent to ‘at all times’ or ‘at any time in the past.’  It seems to me that in considering a particular case before the court, only one particular time will be of relevance for the application of paragraph 2(3) of Schedule 9. The plural is used in the paragraph, that is, ‘at all material times,’ because paragraph 2(3) can be invoked for the interpretation of different sections or subsections in which different events are made material. I now turn to consider the application of paragraph 3 of Schedule 9 to section 4 of the Act. Paragraph 3 of Schedule 9 reads: Statutory tenancy arising on operative date A person who is occupying a dwelling-house as his residence on the operative date shall become the statutory tenant of the dwelling-house if, on the assumption that this Act and the provisions of the Rent Act 1968 which are applied by Schedule 2 to this Act, including (where relevant) any amendments to those provisions, were in force at all material times before that date, he would be a statutory tenant of the dwelling-house on that date, and this Act shall thereafter apply to him, and by reference to him, on that assumption. Section 4(2) provides: Subject to section 5 below, subsection (3), or, as the case may be, subsection (4) below shall have effect for determining what person (if any) is the statutory tenant of a dwelling-house at any time after the death of a person (‘the original occupier’) who was, immediately before his death, a protected occupier or statutory tenant of the dwelling-house in his own right. This subsection defines the situation in which subsection (3) or subsection (4) may be invoked. There must be an original occupier from whom a right is said to be derived who was immediately before his death a protected occupier or statutory tenant. Thus it is his status that has to be established. Paragraph 3 of Schedule 9 lays down what status a person occupying the dwelling-house on the operative date is to have. In considering this question we are to assume that the Act was in force at all material times before the operative date and then ask on that assumption if he would be a statutory tenant on the operative date. It is important to bear in mind that the paragraph requires the assumption to be made that the Act was in force for the purpose of determining whether the occupier would be a statutory tenant and not if anyone else would be or would have been a statutory tenant. In the present case the defendant could only become a statutory tenant by virtue of the provisions of section 4. Section 4(1) converts a protected occupier into a statutory tenant. For the reasons already stated, the defendant was never in my opinion a protected occupier and consequently she cannot rely on section 4(1) as directly governing her status. Indeed if she were a protected occupier she would not wish to do so. We pass on to section 4(2), which lays down the situation in which the subsequent subsections may be invoked. That situation is the death of the original occupier who was immediately before his death a protected occupier or a statutory tenant in his own right. If Mr Cooper was such a person, then the defendant could invoke section 4(3) as being a widow residing with Mr Cooper at his death. Consequently the material time for the purpose of section 4(3) is immediately before the date of Mr Cooper’s death and thereafter. On the assumption that the Act was in force at the date of Mr Cooper’s death, in my opinion section 4 would not be brought into play because Mr Cooper was not a protected occupier in his own right. Moreover, he was not in my opinion a statutory tenant in his own right because as I take the view that we cannot antedate the Act beyond Mr Cooper’s death he never was a protected occupier. In so far as paragraph 3 of Schedule 9 refers to ‘material times’ in the plural, again, as with paragraph 2, this is necessary because section 4 refers to different events in its subsections. For the purpose of subsection (2) we start with the death of a person, whereas subsection (1) relates to the termination of the licence or tenancy for various reasons. I therefore take the view that the material times for the purpose of the Act will be the particular time in each case which in the relevant section or subsection is indicated as the time for the occurrence of the qualifying conditions which entitle the claimant to the particular status referred to. That being so, I do not think that it is possible for the defendant to go back to the time when her husband was working wholetime in agriculture. I would therefore dismiss this appeal. The appeal was allowed with costs in the Court of Appeal (except the costs of a motion to expedite and dismiss the appeal) and costs in the county court (to date) on Scale 3. The county court order was set aside and the case remitted to the county court to try the further issue mentioned in the judgment of Megaw LJ. Leave to appeal to the House of Lords was refused.