R v Newcastle upon Tyne County Court, ex parte Thompson

Rent Act 1977 — Possession — Application for judicial review — Consent judgment and orders in county court challenged — Case 9 in Schedule 15 to 1977 Act — Rules governing jurisdiction to make a consent order for possession in the case of a tenant protected by the Rent Act — In this case possession was sought by the landlords under Case 9 in Schedule 15 on the ground that the dwelling-house was reasonably required by the landlords as a residence for themselves and their two sons — The order for possession which was now challenged by the tenant was made by the district registrar, it having apparently been agreed by the parties’ representatives that such an order should be made, although it was not expressed to be a consent order — Counsel who acted for the tenant before the registrar had, however, written a letter which the court now accepted as an accurate account of what had happened — No concession had been made on behalf of the tenant that she was not protected by the Act, or that the landlords reasonably required the flat or that they would suffer greater hardship if they were not granted possession — No evidence was produced to the registrar and no admission was made by or on behalf of the tenant that it was reasonable to make the possession order The judge considered a number of authorities bearing on the court’s jurisdiction to make a consent order in Rent Act possession cases — It was clear since Barton v Fincham that the agreement of the tenant to give up possession was not sufficient to enable a consent order to be made — ‘Where the legislature has in clear and unmistakable language restricted the jurisdiction of the court . . . no agreement between the parties can give the court a jurisdiction which the legislature has said it is not to exercise’ — In principle the court must be satisfied that the conditions exist for a possession order to be made — The mandatory nature of section 98 of the 1977 Act overrules the normal rules as to consent — However, as is clear from Barton v Fincham and Thorne v Smith, and restated in Syed Hussain v A M Abdullah Sahib & Co, if the tenant in effect admits that the landlord’s claim is well founded, the judge has no duty to require the matter to be further investigated — There must be no doubt about the admission; a compromise made without admissions will not suffice Held that there was nothing in the present case which amounted to an admission, whether explicit or implicit, of the landlords’ claim — The application for judicial review was accordingly granted and the registrar’s order for possession quashed — At the end of his judgment the judge gave some advice to practitioners The following cases are referred to in this report. Barton v Fincham [1921] 2 KB 291 Peachey Property Corporation Ltd v Robinson [1967] 2 QB 543; [1966] 2 WLR 1386; [1966] 2 All ER 981, CA R v Bloomsbury and Marylebone County Court, ex parte Blackburne [1985] 2 EGLR 157; (1985) 275 EG 1273, CA Salter v Lask [1924] 1 KB 754 Syed Hussain bin Abdul Rahman bin Shaikh Alkaff v A M Abdullah Sahib & Co [1985] 1 WLR 1392, PC Thorne v Smith [1947] KB 307; [1947] 1 All ER 39, CA This was an application by Margaret Jane Thompson, tenant of a dwelling-house at 78 Kentmere Avenue, Walkerdene, Newcastle upon Tyne, for judicial review, seeking an order of certiorari to quash a judgment of Mr District Registrar Ward, at Newcastle upon Tyne County Court, ordering possession of the dwelling-house to be given to the plaintiffs (present respondents), Mr and Mrs John Douglass, the landlords. Richard Hooley (instructed by Wilkinson Maughan, of Newcastle upon Tyne) appeared on behalf of the applicant; Michael Gadd (instructed by Septimus G Ward & Rose, of Newcastle upon Tyne) represented the respondents. Giving judgment, MCNEILL J said: The applicant moves with leave of the single judge for judicial review by way of an order of certiorari to quash a judgment of Mr District Registrar Ward given in the Newcastle upon Tyne County Court on August 19 1987 in an action between the applicant as defendant and Mr and Mrs John Douglass as plaintiffs. The judgment was that the plaintiffs recover against the defendant possession of 78 Kentmere Avenue, Walkerdene, Newcastle upon Tyne. It was ordered that the defendant give possession of the premises on February 1 1988. There was no order for party and party costs. There was an order for the defendant’s costs to be taxed under the legal aid scheme. Although not so expressed, it is common ground that the judgment and orders were consent orders, the parties, then being represented, as to the plaintiffs by a solicitor, and as to the defendant by counsel, having agreed prior to the matter being called on before the learned district registrar that an order in those terms should be made. The premises were the upper-floor flat of a building owned by the plaintiffs in which they occupied the lower-floor flat. The defendant had become tenant in December 1979. Notice to quit had been given on May 1 1987 to expire on May 30 1987 and by the particulars of claim it was accepted by the plaintiffs that the premises were premises to which the Rent Act 1977 applied. The ground on which possession was sought was that the dwelling-house, that is to say no 78, was reasonably required by the plaintiffs for occupation as a residence for themselves and their two sons and that that brought the matter within Case 9 of Schedule 15 to the Act. The premises were, it is common ground, premises which fell within section 98 of the Rent Act 1977. Subsection (1) of that section reads: Subject to this Part of this Act, a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either — (a) the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect, or (b) the circumstances are as specified in any of the Cases in Part I of Schedule 15 to this Act. By subsection (3), as far as it is material: Part III of Schedule 15 shall have effect in relation to Case 9 in that Schedule . . . Case 9, so far as material, reads as follows: Where the dwelling-house is reasonably required by the landlord for occupation as a residence for — (a) himself, or (b) any son or daughter of his over 18 years of age . . . and the landlord did not become landlord by purchasing the dwelling-house or any interest therein after . . . and there are given certain particular dates. It is common ground and accepted that the plaintiffs were not disqualified for taking proceedings under the latter part of that Case. Part III of the same Schedule, again so far as is material, in para 1 reads as follows: A court shall not make an order for possession of a dwelling-house by reason only that the circumstances of the case fall within Case 9 in Part I of this Schedule if the court is satisfied that, having regard to all the circumstances of the case, including the question whether other accommodation is available for the landlord or the tenant, greater hardship would be caused by granting the order than by refusing to grant it. Accordingly, it is not in dispute between counsel before me that, before an order can be made, three conditions must be satisfied. First of all, under section 98(1) the court must consider it reasonable to make an order. Second, under Case 9 it must have shown that the dwelling-house is reasonably required by the landlord for occupation as a residence by himself or his son or daughter over the age of 18. Third, the court must be satisfied on the question of greater hardship. That section, and similarly worded sections in other legislation, both in this country and overseas, has been the subject of judicial decision. In R v Bloomsbury and Marylebone County Court, ex parte Blackburne [1985] 2 EGLR 157 the Court of Appeal had to consider the duty of a court under section 98(1) of the Rent Act 1977 when asked to make a consent order for possession of a dwelling-house the subject of a statutory tenancy. In other words, in that case the Court of Appeal was dealing with precisely the situation which arose here before the learned district registrar. The ratio decidendi of the appeal in that case is to be found in the report at p 158F where Sir John Donaldson MR said: It is to be observed that an agreement by a statutory tenant to give up possession in return for payment is not illegal, unlawful or contrary to public policy (Rajbenback v Mamon [1955] 1 QB 283). However, section 98 and its predecessor, section 5 of the 1920 Act, prevents specific performance of such an agreement by the making of a possession order unless certain conditions are satisfied. Then he went on to say on the facts of that case: The question which then arises is whether the learned county court judge could have been satisfied that the requirements of section 98(1) were met. There was no express admission to this effect. The appellants, however, submit that such an admission was implicit in the consent to judgment. Mr Bartlett, on their behalf, submits that this consent is explicable only on the basis that Mr Blackburne — who was the tenant — recognised that (a) he was unable to claim the protection of the 1977 Act because he had never been or had ceased to be a statutory tenant, or (b) although he was a statutory tenant, he fell within Case 1 of Schedule 15 and it was reasonable to make an order for possession. I disagree. There is a third possibility, namely (c) Mr Blackburne, although a statutory tenant whose arrears of rent, if any, were extinguished by his counterclaim, nevertheless thought that the sum offered by the landlords was so attractive that he should surrender his rights or at least thought that any doubts which he had upon this score should be resolved by a compromise involving his acceptance of a large lump sum. Inference (c) would not have entitled the learned judge to make the order. In reaching the conclusion which he did the Master of the Rolls, in agreement with Glidewell J, who heard the matter on the application for judicial review, concluded that on the facts there the learned county court judge acted without jurisdiction. In particular the Master of the Rolls relied on a judgment of the Court of Appeal in Barton v Fincham [1921] 2 KB 291. In the course of that case Bankes LJ at p 296 said: . . . the legislature has in clear and unmistakable language restricted the jurisdiction of the court, and where no agreement between parties can give the court a jurisdiction which the legislature has said it is not to exercise. The Master of the Rolls continued: Accordingly, in agreement with Glidewell J I am satisfied that the learned120 county court judge acted without jurisdiction. Prima facie, it follows that his order should be quashed. That decision is prima facie binding upon me. Mr Gadd, for the respondents, contends that the effect of that decision should be limited to its own facts. In particular, he says that in the present case there is no suggestion that the tenant here consented to an order because she was being paid. Therefore, it can be said that the Blackburne case is distinguishable on the basis that there was no consideration for the consent to go. Therefore, the Master of the Rolls’ third possibility, which would not have entitled the learned judge to make the order, is inappropriate here. Mr Gadd invited attention in that context to the decision of the Court of Appeal in Thorne v Smith [1947] 1 KB 307, a case which was referred to in the judgment in Blackburne. In that case the tenant had consented to an order for possession, although a protected tenant, and in circumstances where he was legally represented. It turned out, after possession had been given, that the landlord had obtained the order by misrepresenting the ground for possession. The landlord had said that he wanted the property for his own occupation, but upon getting possession he put it into the hands of estate agents for sale, and it was sold with vacant possession. Under the statute a tenant in those circumstances had a claim for compensation. The county court judge held that he had no jurisdiction to grant compensation where the order for possession was a consent order. He was reversed on that point. The court held that the fact that the order was a consent order did not bar the claim for compensation, but — and this is what is relied on as relevant for present purposes — the Court of Appeal held that the county court judge had in the circumstances jurisdiction to make the order for possession. There are two things which have to be said about that case. First of all, it is not a case in which the tenant went for consideration. So in that sense it is not a case which supports Mr Gadd’s argument that giving consideration is a relevant consideration. In that case the background, therefore, was that the tenant had a legitimate claim for compensation if there was a legitimate order for possession. It was the landlord who was taking the point to defeat the right to compensation that the consent order was no order at all, not an order which could have been made. Scott LJ, giving the leading judgment, does not advert to the point which is material in the present case. But Bucknill LJ, at p 314, said this when he was faced with an argument based upon Barton v Fincham, and in particular he invited attention to the judgment of Scrutton LJ. There Scrutton LJ said: It was urged that the effect of our decision would be to prevent agreements in court. If the tenant is willing to go out, I do not see why any order is wanted; let him go; but as at present advised I do not see any reason why the judge on being satisfied that a tenant is then ready to go out (not that he was once willing but has changed his mind) should not make an order for possession. Bucknill LJ then continued: But in the present case it is, I think, reasonably clear that the tenant in effect agreed to the order because at the time when the landlord asked the court to make the order the landlord by his own statements had satisfied the tenant that he intended to occupy the house himself and he, the tenant, could not hope successfully to resist the claim. If the tenant had stated this expressly in court the judge would surely have had jurisdiction to make the order on that ground. I think in the events which happened here, the defendant being legally represented, the judge was entitled to make the order on the assumption that this was the true position. Before making an order for possession the judge is under a duty to satisfy himself as to the truth if there be a dispute between landlord and tenant, but if the tenant in effect agrees that the landlord has a good claim to an order under the Acts, I think the judge has jurisdiction to make the order for possession under the Act without further inquiry. Somervell LJ agreed, and I need read only the passage in his judgment at p 315 by reference to a decision on the rule in Salter v Lask [1924] 1 KB 754: Nothing in the decision that we are giving in any way, as it seems to me, diminishes the scope of that rule. That is to say, the rule that before making an order for the recovery of protected property, the court ‘. . . must satisfy itself that such order may properly be made regard being had to the provisions of the Act’. He continued: We are deciding that on what happened in this case, the defendant being, as he was, legally represented, the county court judge was rightly ‘satisfied’ that the order could properly be made. The other point arises from the use of the word ‘consent’ as applied to the order made herein. The expression ‘a consent order’ may suggest some compromise or arrangement which might be inconsistent with the provisions of the Acts. When the defendant is agreeing to submit to judgment because he is satisfied that the plaintiff can establish his right to an order under the Acts, it might be advisable to avoid the use of the word ‘consent’, which may have a wider meaning and cover cases where the ‘consent’ was the result of an arrangement which could not properly be made the basis of an order. Upon that authority, it seems to me clear, whatever the facts in Blackburne, that the existence of consideration is not an essential feature of such an arrangement as removed the jurisdiction of the court to make an order for possession. It seems to me that in Thorne v Smith in particular the point is clearly made that the obligation is on the court under the predecessor statute to satisfy itself that the order can properly be made. It is contended by Mr Gadd that it is going too far to rule that, where the parties have come to an arrangement, specific admissions or concessions have to be made before the court can pursue jurisdiction to give effect to the agreement. It is sufficient to contend that if such admissions or concessions are implicit in the terms of the agreement, or in the manner in which the agreement is put before the court, in particular if after advice and with the approbation of the legal adviser, the court can then assume that there is such admission or concession, and using his words: a tenant who consents without consideration to the making of a possession order can only be taken to be saying in effect: ‘I have no case.’ He then dealt with the suggestion that it might be argued that agreeing an extended term before possession has to be given, rather than leaving the period of suspension, if granted, to the court, is no consideration at all, because under section 100 of the Act, the court has in any event a power to suspend. Subsection (2) of section 100 says in terms: On the making of an order for possession of such a dwelling-house — that is to say, a dwelling-house, flat, on a protected tenancy — . . . the court . . . may — (a) stay or suspend execution of the order, or (b) postpone the date of possession, for such period or periods as the court thinks fit. So really the tenant who gives up possession is getting nothing by agreeing to a period, as here, of six months’ suspension. I should have thought that submission might have surprised some practitioners but, be that as it may, I am not persuaded that that is good enough. Mere submission to an order, whether without any consideration or, if it be consideration, with an extended period for possession, is not the same as admitting or conceding the tenant has no case. And, said Mr Gadd, if counsel is there and does not admit or concede and, on the other hand, does not dispute what is said, that is a factor to be taken into account when the existence or non-existence of admission or concession falls to be considered. The position as it emerges on the affidavit is this. The first plaintiff, in his affidavit at para 16, says: I have discussed with my solicitor the hearing of August 19 and he has advised me that at the hearing, it was always accepted by all parties that the registrar could only make the order sought if one of the grounds specified by the Rent Act could be made out. My solicitor further advises me that if this had not been possible, he did at the time, have before him certain newspapers (which he no longer has) showing that suitable alternative accommodation would have been available for Miss Thompson. He goes on to say that he has now written to the council. Then the affidavit continues: I understand however that my solicitor submitted to the registrar before the order was made that the property was reasonably required for my own use and that a brief indication of the particular circumstances was given to the registrar to enable the appropriate finding to be made. The alternative accommodation point, of course, was not one which is taken on the pleadings nor, as I understand it, considered. As far as the pleadings are concerned, the tenant’s pleading (the present applicant’s pleading) was in summary form and put the relevant matters in issue. Counsel acting for the applicant before the learned district registrar has written a letter which, in accordance with practice, was treated, as I treat it, as an accurate account of what happened, without counsel being required to depose to it, and he says this: No concession was made by me to Mr and Mrs Douglass or their solicitor that Miss Thompson’s tenancy was not protected by the Rent Act 1977. Neither was it conceded or admitted that Mr and Mrs Douglass reasonably required121 the flat nor that Mr and Mrs Douglass would suffer greater hardship if possession of the flat were not granted. No evidence of any kind whatever was produced to the registrar, and no admissions were made to him. It was not conceded or admitted to Mr and Mrs Douglass or their solicitor that it was reasonable to make the possession order. It does not seem to me possible on the material before me to say that there was here any such implicit concession or admission of the validity of the respondents’ case as plaintiff landlords. Indeed, all the facts as are disclosed by the affidavits and the material provided by counsel indicate quite clearly that it was a compromise, and a compromise in which neither side gave anything away but sought to arrive at a settlement of the matter which was sufficient for each of them, but that of itself does not, on the authorities to which I have referred, enable the court to have jurisdiction to make an order for possession. Additionally, I was referred to the decision of the Privy Council in Syed Hussain bin Abdul Rahman bin Shaikh Alkaff v A M Abdullah Sahib & Co [1985] 1 WLR 1392, which was an appeal from the Court of Appeal in respect of an order under the Control of Rent Act in the 1970 Singapore Statutes, section 14. That was a case in which the claim was made for possession on the basis that the respondents, as they then were, were in occupation of the appellants’ property as trespassers. The owners . . . claimed . . . an order requiring the occupiers to quit and deliver up vacant possession of the premises . . . the occupiers admitted that they were in occupation of the premises, denied that they were trespassers thereon, contended that they were in occupation as lawful tenants, and sought the protection of the Control of Rent Act. The issue between the parties — I read from the opinion of Lord Keith of Kinkel at p 1394 at B — was thus whether the occupiers were in occupation as trespassers or as lawful tenants. In the latter event there could be no doubt but that they were entitled to the protection of the Control of Rent Act. The issue, however, was not fought out, because the occupiers agreed to a consent judgment against them, dated December 18 1979, in these terms . . . I need not read all of the consent judgment. The material passage is the first one: Upon this action coming on for hearing before His Honour Mr Rahim Jalil in the presence of counsel for the plaintiffs and for the defendants and upon the defendants admitting the claim of the plaintiffs and by consent it is this day adjudged that there be judgment for the plaintiffs against the defendants for possession of the premises . . . It went on to provide for a stay of execution on certain terms. Their lordships were not referred to ex parte Blackburne; I assume because the judgment in ex parte Blackburne was not reported in Estates Gazette until September 28 1985, and the hearing before the Privy Council began, apparently, on October 10 1985. Reference, however, was made to Barton v Fincham and to Thorne v Smith and to Peachey Property Corporation Ltd v Robinson [1967] 2 QB 543. Lord Keith said this at p 1396 at G: It is apparent that none of these English cases is warrant for the proposition drawn from them by Wee Chong Jin CJ in the Nanyang case [1978] 1 MLJ 233, namely, that in an action for possession where it is in issue that the premises may or may not be controlled premises, the court has no jurisdiction to grant an order unless the facts are placed before the court. The facts of the case are not made sufficiently clear in the report to enable their Lordships to form a view as to its correctness or otherwise. It may be that when the consent judgment in the Nanyang case was made in 1973 there was an unresolved conflict as to whether or not the premises were controlled premises, and that the parties agreed on the consent judgment by way of compromise without prejudice to their respective positions. In that situation the consent judgment may well have embodied, within the meaning of Atkin LJ’s words in Barton v Fincham . . . an agreement by way of compromise inconsistent with the provisions of the Act, which should not have been given effect to by the court. Lord Keith then set out section 14 of the Control of Rent Act and continued: There is no restriction upon the jurisdiction of the court if the premises of which possession is sought to be recovered are not comprised in a tenancy. In the present case possession was sought to be recovered upon the ground that the occupiers were trespassers upon the premises, and that is plainly the basis upon which the consent judgment proceeded. The passages which have been quoted from the judgment of Aitken LJ in Barton v Fincham . . . and that of Bucknill LJ in Thorne v Smith . . . are in their Lordships’ view sound authority for the proposition that where the landlord makes a claim for possession based on one of the grounds contained in the Rent Restriction Acts, and the tenant in effect admits that the claim is well founded, the judge has no duty to insist ex proprio motu that the facts be investigated, and that an order for possession made in such circumstances is valid and effective. Applying the purport of that opinion in the present case, Mr Gadd submits that where what happened here happens, there is in effect an admission that the claim is well founded. I am unable to agree on the facts of this case that there was even in effect an admission that the claim was well founded, and I remind myself that in the Syed Hussain case, the judgment in question, although a consent judgment, specifically records the defendants’ admission of the plaintiffs’ claim. Indeed, the learned editors of the Weekly Law Reports in the headnote use this phrase: ‘. . . they agreed to a consent judgment against them which specifically stated that they admitted the owners’ claim.’  Certainly there is nothing on the record here which explicitly or impliedly so states specifically, and the material before the court points to no conclusion other than that this was a compromise made without admissions on either side. In the circumstances I am of the view that this order was made without jurisdiction and should be quashed. For the assistance of practitioners, counsel and solicitors, may I say this?  If it is desired to reach terms of agreement to be embodied in an order whereby possession of premises covered by section 98 of the Rent Act 1977 is to be given up, for the court to have jurisdiction to make an order there must be plain admissions of the qualifying conditions which must be fulfilled before such an order can be made. That is to say, a concession that it is reasonable for the order to be made, that, whichever the case may be, suitable alternative accommodation is or will be available to the tenant, or that the relevant circumstances specified in the appropriate Case exist, and, where relevant, that it is accepted by the tenant that greater hardship would not be caused by granting the order than by refusing to grant it. I recognise the practical difficulties that this may impose on counsel and solicitors, but it illustrates the well-known principle that parties under this statute cannot confer by consent jurisdiction of the court which the court does not otherwise have. The application for judicial review was granted and the registrar’s order for possession quashed. No order was made for party and party costs in the judicial review proceedings; the taxation of the applicant’s costs under the legal aid scheme was ordered.