Dyson Holdings Ltd v Fox

Rent control–Succession to tenancy–Woman permanently living with man held a member of his family though she bore him no children–Change in law to reflect recent changes in social attitudes–Woman’s occupation protected though man died as long ago as 1961 This was an appeal by Miss Olive Fox, otherwise Mrs Olive Wright, from a decision of Judge Fife at Bromley County Court on November 18 1974 awarding Dyson Holdings Ltd possession of premises occupied by her at 3 Old Road, Lewisham, London SE15. Mr R W Seymour (instructed by Straker, Holford & Co) appeared for the appellant, and Mr S S Stevens (instructed by Clintons) represented the respondents. Giving a reserved judgment, LORD DENNING said that as far as was known, Jack Wright was a bachelor and the appellant, Olive Fox, a spinster, two people who met 40 years ago and lived together as man and wife happily ever after. She took his name and was known as Mrs Wright. In 1940 they were bombed out and went to live at 3 Old Road, Lewisham. The rent book was in the name of Mr J Wright. They both went out to work and used their earnings to run the house. In every respect they were man and wife save that they had not gone through the ceremony of marriage. After 21 years in the house, on August 28 1961, Mr Wright died. The appellant remained on in the house and paid the rent, using the name Mrs Wright. The rent book remained in the name of ‘J Wright,’ and the records of the landlord still showed the tenant as ‘J Wright.’  He (his Lordship) expected that the ownership of the premises changed hands from time to time, but in March 1973 the owners were the respondent property company, Dyson Holdings Ltd. By this time Mrs Wright, as she was known, was herself getting on in years. She was 73. She wrote to the landlords asking for a statement of the weekly rent, signing herself ‘O A Wright.’  This put Dysons on inquiry. They asked their agents to call at the house. The appellant told them that Mr Jack Wright died on August 28 1961 and that she was his widow. Dysons asked their agents to check up on the electoral roll. They did so. They found that she had given her name there as ‘Olive Fox.’  Dysons inferred that she was not really Jack Wright’s widow. If she had been, she could of course have had protection under the Rent Acts. But if she was not his widow, they thought they were entitled in law to get her out. So on March 27 1973 they wrote to her: We are addressing you as Mrs O Wright, although we understand from the electoral register that the person in occupation is Olive Fox, and perhaps you would explain this in your reply. Until this matter is clarified, we are unable to accept any rent. So after all those years the truth was out. The appellant was not Jack Wright’s widow. She was only a woman who had lived with him as his wife for 21 years. Dysons refused to receive any rent from her and brought proceedings against her for possession on the ground that she was not protected by the Rent Acts. She had, they said, no tenancy and was a trespasser; they had accepted rent from her in ignorance of the fact that the tenant had died, and as soon as they discovered that she was not the tenant’s widow they had claimed they were entitled to possession. The judge accepted this argument. He held that he was bound by the decision of the Court of Appeal in Gammans v Ekins [1950] 2 KB 328. It was sad, he said, to have to turn this lady of 74 out, but he felt he had no alternative. He ordered her out in 28 days. She now appealed. Ever since the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, section 12 (1) (g), the Rent Acts had protected ‘a member of the tenant’s family’ in these words: ‘. . . the expression ‘tenant’ includes the widow of a tenant . . . who was residing with him at the time of his death, or, where a tenant . . . leaves no . . . widow or is a woman, such member of the tenant’s family so residing as aforesaid as may be decided in default of agreement by the county court. . . .’  So in this case, the lady was protected if she was a ‘member of the tenant’s family,’ but not otherwise. Those words had often been considered by the court. The cases were collected in Megarry’s Rent Acts 10th ed (1967) vol 1 pp 214-216. The word ‘family’ in this statute was not used in any technical sense, but in a popular sense. It was used not in the sense in which it would be used by a studious and unworldly lawyer, but in the sense in which it would be used by a man who was ‘base, common and popular,’ to use Shakespeare’s words in Henry V, act IV, scene I, quoted by Evershed MR in this context in Langdon v Horton [1951] 1 KB 666 at 669; or in modern words, by the ordinary man in the street, as noted in Brock v Wollams [1949] 2 KB 388 at 395 by Cohen LJ. Applying this test, there were two cases in the Court of Appeal which were near to the present. The first was Gammans v Ekins [1950] 2 KB 328, reported more fully in (1950) 66 (Pt 1) TLR 1139. A dwelling-house was let to a Mrs Smith. A man named Ekins went to live in the house. He lived for 20 years or so in close but unmarried association with Mrs Smith. He adopted her name and posed as her husband. In 1949 she died. Mr Ekins claimed that he was a member of her ‘family.’  The county court judge held that he was. The Court of Appeal held that he was not. Asquith LJ said at page 331: ‘To say of two people masquerading, as these two were, as husband and wife, there being no children to complicate the picture, that they were members of the same family, seems to be an abuse of the English language. . . .’  The other case was Hawes v Evenden [1953] 1 WLR 1169. A dwelling-house was let to a Mr Randall. He lived there with a Miss Evenden. For 12 years they occupied the same house as man and wife, though they were not married, and two children were born of the association. She kept her own name, Evenden, but the children used the name Randall. When Mr Randall died, Miss Evenden claimed to be a member of the tenant’s family. Somervell LJ said at61 p 1171: ‘where the evidence justifies a finding that they all lived together as a family, then . . . I think the mother is a member of the family. . . .’  The Court of Appeal upheld the county court judge’s decision in Miss Evenden’s favour. If both these cases were rightly decided, it seemed to follow that an unmarried woman who had lived with a man as his wife for many years was a ‘member of the tenant’s family’ if she had children by him, but she was not a member of his family if she had no children. That meant that if a couple had a baby 19 years ago which died when a few days old, or as a young child, the woman would be ‘a member of the tenant’s family,’ but if the baby had been still-born, or if the woman had had a miscarriage 19 years ago, she would not be a member of his family. Yet for the last 19 years they had lived together as man and wife. That seemed to him (his Lordship) a ridiculous distinction: so ridiculous indeed, that it should be rejected by the court, and that the court should hold that a couple who lived together as man and wife for 20 years were members of the same family, whether they had children or not. But was the Court of Appeal at liberty to reject the distinction?  Was it bound by Gammans v Ekins?  That case could be distinguished on narrow grounds, such as that the woman was the tenant and not the man, or that their relationship might perhaps have been platonic. But he (the Master of the Rolls) disliked the device of distinguishing a case on narrow grounds. He would prefer to say, as he had often said, that the Court of Appeal was not absolutely bound by a previous decision when it was seen that it could no longer be supported. At any rate it was not so bound when, owing to the lapse of time and the change in social conditions, the previous decision was not in accord with modern thinking. A recent instance was Cooke v Head [1972] 1 WLR 518, where the court departed from Diwell v Farnes [1959] 1 WLR 624. He (Lord Denning) was glad to find that the court were all of one mind on this, but in case there were some who were doubtful, he could put the case on a conventional ground. It had been decided by the House of Lords that when a statute used an ordinary English word in its popular meaning, as distinct from its legal meaning, it was for the tribunal of fact to decide whether or no that popular meaning covered the case in hand. The tribunal of fact must use its own understanding of the word and apply it to the facts which had been proved. An appellate court should not interfere with the decision of the tribunal of fact unless it was unreasonable in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision. That was the very ground of the decision of the House of Lords in Cozens v Brutus [1973] AC 854. In the light of that decision it appeared to him (his Lordship) that Gammans v Ekins was wrongly decided. In that case the tribunal of fact, the county court judge, gave judgment for the man, finding him to be a ‘member of the tenant’s family.’  The Court of Appeal recognised that the words were to be given their ordinary and popular meaning, but nevertheless they reversed the county court judge. He (Lord Denning) did not think they should have done. To his mind the decision of the county court judge in that case was a perfectly reasonable decision, as Evershed MR recognised (see p 334); and on the authority of Cozens v Brutus, the Court of Appeal ought not to have interfered with it. They went wrong just as the Divisional Court did in Cozens v Brutus. Their decision could not stand with that subsequent decision of the House of Lords: the court, therefore, was not bound by it (see Young v Bristol Aeroplane Co Ltd [1944] KB 718 at 725). It was however necessary to add a word of caution about Cozens v Brutus. When an ordinary word came to be applied to similar facts in one case after another, it was very important that the various tribunals of fact should each apply it in the same way. For instance, if the question came up whether an unmarried woman living for many years as a man’s wife was a member of his family, each tribunal of fact should give the same answer. It would be intolerable if half of the judges gave one answer, and the other half another. The Court of Appeal would have to give a definite ruling, one way or the other, just as they did in the seat-belt case: see Froom v Butcher [1975] 3 WLR 379. So here, the court should give a definite ruling, and should rule that in this case the lady was a member of the tenant’s family residing with him at the time of his death. As such, she was entitled to the protection of the Rent Acts. Dysons were not entitled to turn her out, and the appeal should accordingly be allowed. Agreeing, JAMES LJ said that the only issues were (1) whether there was a rule of law binding upon the court which precluded the appellant from taking Mr Wright’s tenancy on his death, and (2) if not, whether on the facts of the case the appellant was a ‘member of the tenant’s family’ within the meaning of the statutes. It was convenient to deal with those issues in the reverse order. In Brock v Wollams [1949] 2 KB 388 it was held that ‘family’ in section 12 (1) (g) of the 1920 Act should be given its ‘popular meaning.’  Cohen LJ phrased at p 395 the question which the judge should ask himself in order to decide whether a person was a member of a tenant’s family: ‘Would an ordinary man, addressing his mind to the question whether Mrs Wollams was a member of the family or not, have answered ‘yes’ or ‘no’?’  In the cases which had been decided since Brock v Wollams, that test had been followed and its validity had never been questioned. Whether the answer to the question was ‘yes’ or ‘no’ fell to be determined as at the date of death of the tenant, in this case as at August 1961. In Gammans v Ekins [1950] 2 KB 328 all three members of the court took the view that a man who had lived for 20 years with a female tenant did not acquire the status of membership of the tenant’s family, whether the cohabitation was on the basis of platonic friendship or involved sexual relationship as between man and wife. Asquith LJ said at p 331: ‘But I would decide the case on a simpler view. To say of two people masquerading as these two were, as husband and wife, there being no children to complicate the picture, that they were members of the same family, seems to be an abuse of the English language. . . .’  Jenkins LJ said at p 332: ‘The defendant was not in my view a member of the family in any reasonable sense whatever. The parties, for reasons of convenience, had chosen to live together, and the defendant, to avoid, as he said, gossip, had taken the tenant’s name of Smith. The neighbours assumed that they were husband and wife and accepted them as such. I cannot regard this as giving the defendant the same claim to be considered a member of the tenant’s family as if they had been lawfully man and wife.’  Evershed MR, applying the Brock v Wollams test, said at p 333: ‘. . . and it was indeed difficult to imagine any context in which, by the proper use of the English language, a man living in such a relationship with her could be described as of the tenant’s family.’ The strongly-expressed view was that at 1949, the relevant date, the popular meaning of ‘family’ did not include the male consort of a female tenant whose relationship had all the incidents of a marriage short of the birth of a child, and all the outward appearances of marriage. Between 1950 and 1975 there had been many changes in the law effected by statute and decisions of the courts. Many changes had their foundations in the changed needs and views of society. Such changes had occurred in the field of family law and equitable interests in property. The popular meaning given to the word ‘family’ was not fixed once and for all time. He (his Lordship) had no doubt that with the passage of years it had changed. The cases revealed that it was not restricted to blood relationships and those created by the marriage ceremony.62 It could include de facto as well as de jure relationships. The popular meaning of ‘family’ in 1975 would, according to the answer of the ordinary man, include the defendant as a member of Mr Wright’s family. This was not to say that every mistress should be so regarded. Relationships of a casual or intermittent character and those bearing indications of impermanence would not come within the popular concept of a family unit. It was not so easy to decide whether in 1961 the ordinary man would have regarded the defendant as a member of Mr Wright’s family. The changes of attitude which had taken place could not be ascribed to any particular year. Had the court to consider the position as at 1955, he (his Lordship) would not be satisfied that the attitude reflected in the words of Asquith LJ in Gammans v Ekins had changed. But he was confident that by 1970 the changes had taken place. There was no magic in the year 1961. He thought that having regard to the radical change which had by 1975 taken place, it would be a harsh and somewhat ossified approach to the present case to hold that in 1961 the defendant was not in the popular sense a member of the family. There remained the issue of whether there was any rule of law which precluded the defendant being a member of the family for the purpose of the Acts. If there was, it was to be found only in the decision of the Court of Appeal in Gammans v Ekins. He (James LJ) confessed that he had been troubled in the course of the argument as to how far the decision in that case was conclusive of the present appeal. The court in Gammans’s case reversed the trial judge. They could not have done so unless the issue was a question of law. It was not a decision which could be explained on the basis of a question of fact. The cases which were said to be inconsistent with the decision were in his judgment not shown to be inconsistent. They were based upon the added fact of birth of a child or children to the illicit union. All the members of the court in Gammans’s case left that situation for further consideration. The distinction between the mistress who was childless and the mistress who had a child by the tenant, all forming a family unit, was to his mind a valid distinction. He found it impossible to say that the decision in Gammans’s case was per incuriam. All the judgments were carefully directed to the precise point. Upon its facts the case was distinguishable from the present case, because the tenant was a female who had taken a man into her house and the man claimed the statutory tenancy. But that factual difference, to his (James LJ’s) mind, did not affect the general principle. He could not take the view that Gammans v Ekins was wrongly decided. The decision was binding on the court, but it was binding only upon the meaning to be given to ‘family’ at that time. The point decided was that applying the popular meaning of the word ‘family’ as it was used and understood in 1949, the evidence of relationship could not support a finding that the defendant was a member of the tenant’s family. The decision was not authority for the proposition that at some later time a person in a similar position to Mr Ekins could not in law be a member of the tenant’s family within the meaning of the Increase of Rent and Mortgage Interest (Restrictions) Acts and the Rent Act 1968. The word ‘family’ must be given its popular meaning at the time relevant to the decision in the particular case. To hold that Gammans v Ekins precluded the defendant from bringing himself within the statute would be to apply a precedent slavishly in circumstances to which it was not appropriate having regard to reality. He (his Lordship) would therefore allow the appeal. Also agreeing, BRIDGE LJ said that on the face of it Gammans v Ekins appeared to have decided as a matter of law that where a couple had lived together as man and wife without either marrying or producing children, no matter how stable and permanent the relationship, one partner could not on the death of the other succeed to the other’s statutory tenancy as being ‘a member of the tenant’s family’ under section 12 (1) (g) of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. In that case it was in fact the male partner who claimed to succeed to the tenancy of the deceased female partner, but he (his Lordship) could find nothing in the judgments to suggest that the point would have been decided differently if the roles had been reversed. It was clear, however, that Gammans v Ekins, following Brock v Wollams, proceeded on the basis that the question who was a ‘member of the tenant’s family’ was to be answered according to the understanding of the ordinary man, and this test had been consistently applied in all the other cases decided on this provision. It was, as he (his Lordship) thought, not putting it too high to say that between 1950 and 1975 there had been a complete revolution in society’s attitude to unmarried partnerships of the kind under consideration. Such unions were far commoner than they used to be. The social stigma which once attached to them had almost, if not entirely, disappeared. The inadequate but expressive phrases ‘common law wife’ and ‘common law husband’ had come into general use to describe them. The ordinary man in 1975 would, in his (Bridge LJ’s) opinion, certainly say that the parties to such a union, provided it had the appropriate degree of apparent permanence and stability, were members of a single family whether they had children or not. Could the court give effect to this changed social attitude, and consequent change in the scope of a common English word, without doing violence to the doctrine of judicial precedent, and notwithstanding that in this case the appellant’s status must be considered at the date of the original tenant’s death in 1961?  He (his Lordship) felt some hesitation on both these points but in the end had concluded that it would be unduly legalistic to allow either consideration to defeat the appellant’s claim. On the first point, if language could change its meaning to accord with changing social attitudes, then a decision on the meaning of a word in a statute before such a change should not continue to bind thereafter, at all events in a case where the courts had consistently affirmed that the word was to be understood in its ordinary accepted meaning. On the second point, where the modern meaning was plain, the court should, he thought, be prepared to apply it retrospectively to any date unless plainly satisfied that at that date the modern meaning would have been unacceptable. The appeal was allowed with costs in both courts. Leave to appeal to the House of Lords was refused.