Minay v Sentongo

Rent Act 1977 — Technical jurisdictional point in a landlord’s claim for possession based on Case 11 in Schedule 15 to the 1977 Act — Landlord, in order to expedite recovery of possession which she required for her own occupation, made use of the special procedure under the Rent Act (County Court Proceedings for Possession) Rules 1981 — Under these rules it is a condition that the tenant should have been given the requisite notice that possession might be recovered under Case 11 — A landlord who adopts this special procedure by originating application under the 1981 rules cannot, the Court of Appeal have now made clear, ask the court to exercise its dispensing power under Case 11 to waive the requirement to the notice — The dispensing power is exercisable where possession is sought by the ordinary procedure involving the issue of a summons, the service of particulars of claim and so on — In the present case, however, it was established that the landlord had in fact sent the relevant notice to the tenant, but he had not received it — Thus, although the notice had not been ‘given’, as required by the Act, the landlord had properly resorted to the special procedure and honestly believed that she had given the tenant the proper notice — In these particular circumstances the Court of Appeal held that the judge had jurisdiction to exercise the dispensing discretion given to him by Case 11 — Observations by Ackner LJ on the procedure generally, on the scope of the dispensing power and on the county court judge’s power to order proceedings incorrectly commenced by originating application to be continued, if necessary, as if begun by ordinary summons — Tenant’s appeal dismissed This was an appeal by the tenant, Jack Sentongo, from a decision of Judge Coulthard at Bloomsbury and Marylebone County Court in favour of the landlord, Mrs Elsie Minay, on an originating application by the landlord for possession of a flat, flat 2 at 48-49 Gloucester Square, London W2. G Aldous (instructed by H Omar & Co) appeared on behalf of the appellant; J Elvidge (instructed by Sherringtons) represented the respondent. Giving the first judgment at the invitation of Stephenson LJ, ACKNER LJ said: On August 26 of this year His Honour Judge Coulthard, sitting at the Bloomsbury and Marylebone County Court, gave judgment in favour of the respondent, Mrs Minay, ordering the appellant, Mr Sentongo, to give up possession of flat 2, at 48-49 Gloucester Square, London W2, within seven days. He refused to order a stay of execution pending appeal and accordingly an application was made to us. In view of a sudden and unexpected settlement of a substantial appeal, the list enabled us to proceed forthwith with the hearing of this appeal, and that we have done. I wish to pay tribute to counsel who, notwithstanding that they received no warning that this court would be able to act so expeditiously, responded with skill and ability, which fully demonstrated the careful preparation which they had already devoted to the pending appeal. I am particularly obliged to Mr Aldous, who did not appear in the court below but who has so competently argued the jurisdictional point, which was not taken in the court below; it was a technical point, devoid of any real merit and therefore one which was unlikely to be greeted with any great sympathy. It arises in the following circumstances. Mrs Minay is the owner of flat 2, 48-49 Gloucester Square, having purchased the property in September 1980. She occupied it as her residence for a time and then let it on a regulated tenancy. When she so let it, her agents sent her tenant, Mr Sentongo, a notice in writing that possession might be recovered under Case 11 of Schedule 15 to the Rent Act 1977. This tenancy was for a fixed term, which expired on August 1 1982. Requiring the flat as a residence for herself, she brought proceedings in the Bloomsbury and Marylebone County Court for possession. In order to expedite the recovery of possession, she took advantage of the relatively new procedure provided for by the Rent Act (County Court Proceedings for Possession) Rules 1981 (SI 1981 no 139), which came into operation on April 6 1981. These rules provide a special procedure by originating application for the recovery of possession from a protected or statutory tenant in certain limited circumstances. The Rent (County Court Proceedings) (Case 11) Rules 1978 (SI 1978 no 1961) had initiated this procedure, but limited it to Case 11; the 1981 rules had extended it to other Cases. Rule 2(1) provides as follows: These Rules apply to proceedings for recovery of possession of a dwelling-house– (a)  under Cases 11, 12 or 20, provided that: (i)  the dwelling-house is required as a residence for the owner or for any member of the owner’s family who resided with him at his death or, where the proceedings are brought under Case 11, for any member of the owner’s family who resided with him when he last occupied the dwelling-house as a residence and (ii)  the tenant was given the requisite notice, not later than the relevant date, that possession might be recovered under the Case relied on. It then goes on to deal with the other Cases to which the rules apply. Thus it will be seen that the rules do not apply to every proceeding for recovery of possession under Case 11. For the rules to apply where proceedings are brought under Case 11, it must be established that the dwelling-house is required ‘as a residence for the owner or for any member of the owner’s family who resided with him when he last occupied the dwelling-house as a residence . . .’. It does not apply, for example, to a case where the owner has died and the dwelling-house is required by his successor in title as his residence, or for the purpose of disposing of it with vacant possession or to the other circumstances detailed in paragraph 2 of Part V of Schedule 15 to the Rent Act 1977 as amended by the Housing Act 1980. This, no doubt, is because this alternative procedure is designed to deal essentially with the urgent case where, if an order for possession, assuming one were to be granted, was not made, serious hardship, expense or inconvenience would be suffered by the owner-occupier or by a member of the family who required it as a residence. In other cases not provided for by the regulations, possession would be sought by the ordinary procedure involving the issue of a summons, the service of particulars of claim, etc. Rule 2(1)(a)(ii) states in terms that the rules are to apply to the proceedings, provided that the tenant was given the requisite notice not later than the relevant date, that possession might be recovered under the Case relied upon. Rule 3 provides that the originating application shall be in the form prescribed by Appendix A; this form requires, in paragraph 3, a statement that the notice in writing was given to the respondent, stating the date, that possession might be recovered under Case 11 of Schedule 15 to the Rent Act 1977. Rule 4 provides that an affidavit shall be filed in support of the originating application, verifying the statements in the application, deposing to any other material matters and exhibiting any material documents. A copy of the affidavit and copies of the exhibits are to be served on the respondent at least seven clear days before the return date. It is of course well known that it is a requirement of Case 11 that the landlord must have given notice in writing, not later than the date of the commencement of the tenancy, that possession might be recovered under this Case. However, if the court is of the opinion that notwithstanding that no such notice was given, it is just and equitable to make an order for possession of the dwelling-house, that court may dispense with that requirement. Mrs Minay applied to the court, using the form of originating application provided for in Appendix A and giving particulars of the notice in writing, which she believed was given to the respondent, and she filed an affidavit verifying her statement in105 that application. The learned judge was satisfied that her agent had sent the appropriate notice by the relevant date, but he was equally satisfied that Mr Sentongo had never received any such notice. He rightly concluded, following the decision of this court in Sun Alliance and London Assurance Co Ltd v Hayman [1975] 1 WLR 177, that although the notice had been sent, since it had not been received, it had not been ‘given’ as required by the Act. However, the learned judge proceeded to consider whether it was just and equitable to make an order for possession of the flat notwithstanding that Mrs Minay had failed to give Mr Sentongo the requisite notice. Having considered the circumstances of the parties, he concluded that it was just and equitable to make an order for possession. The technical point which Mr Aldous has raised is this. He contends that the learned judge has no jurisdiction to make an order for possession in these special proceedings begun by originating application. He argued that rule 2(1)(a)(ii) quoted above, makes it a condition precedent to the proper use of the special procedure that the tenant was given the requisite notice required by Case 11. Mr Elvidge was at first minded to concede that a landlord could not take advantage of the 1981 rules and resort to the special procedure if it was no part of his case that he had served the requisite notice, and accordingly had to rely upon the court’s discretion if he were to succeed under Case 11. In such a situation he accepted that the landlord could not take advantage of the special procedure, the court having no jurisdiction in such proceedings to make an order for possession. The landlord would be obliged to bring his proceedings by the ordinary and less expeditious procedure. He subsequently withdrew that concession and was obliged to contend that the proviso in rule 2(1)(a)(ii) was surplusage. In my judgment Mr Elvidge’s concession was correct. The rules provide this special procedure in cases where the court is bound to order possession if the facts asserted in the originating application and verified by affidavit are proved. This is the justification for the more speedy remedy. So far as Case 11 is concerned, they are not designed to cater for the situation where it is common ground that the landlord has failed to comply with his statutory obligation to serve the appropriate notice, and must accordingly rely upon the court’s exercising its discretion in his favour. A landlord who wishes the court to exercise its discretion to dispense with the notice cannot avail himself of this procedure, as the corresponding rule of the 1978 rules made clear. That, however, is not an end of the matter. In this case the landlord honestly believed that she had given her tenant the requisite notice, so stated in her originating application and so verified in her affidavit in support. The learned judge found that the requisite notice had indeed been sent to the tenant. This, however, was one of those rare cases where the tenant was able to rebut the presumption that he had received the notice. In these circumstances the special procedure was properly resorted to by the landlord. It was not a case of the landlord’s conceding that there was no notice or failing bona fide to assert the service of the requisite notice. Accordingly, the proceedings by way of originating application were properly before the learned judge, and he thus had jurisdiction to exercise the discretion given to him under Case 11. I cannot accept Mr Aldous’ submission that if a landlord bona fide asserts that he has given the requisite notice yet fails so to satisfy the judge, he must then be, so to speak, non-suited and required to bring fresh proceedings by ordinary summons, before the judge can properly consider whether or not to exercise his statutory discretion to grant or refuse an order for possession. Mr Aldous contended that the new procedure was not appropriate for deciding the issue as to whether or not discretion should be exercised. It was too streamlined a procedure and because it involved no pleadings and no discovery without some special order, justice could not properly be done. As regards the absence of pleadings, the respondent is in fact in a more favourable position, since the form of originating application not only provides that more information be given than might well be provided in the ordinary particulars of claim, but it has to be supported by an affidavit; indeed, this affidavit must depose to any other material matters. As regards the absence of discovery, the affidavit must exhibit any material documents and a copy of the affidavit and copies of any exhibits must be served on the respondent — rule 4. Moreover, Mr Aldous’ submission overlooks, as this case so well demonstrates, that the judge may well be obliged to decide a much more difficult issue, as to whether the flat is required by the landlord for her residence. In this case he also had to decide, since every issue was forcefully fought by the tenant, whether Mrs Minay ever occupied the flat as a residence. The hearing of the application took two days; Mrs Minay not only gave evidence herself but called four witnesses. Mr Sentongo also gave evidence and called a witness. This was a full-scale action, although initiated by special procedure which no doubt contemplated a shorter trial. The advantage of the special procedure to Mrs Minay was that it enabled her to get her claim for possession heard significantly earlier than if she had had to resort to the ordinary summons procedure. The next point taken by Mr Aldous was that the discretion given to the learned judge under Case 11 does not exist where no notice at all was given. He submits that the purpose of the court’s dispensing power was to deal with a situation where a written notice was given later than the appropriate notice, or alternatively where the only notice given, whether in time or out of time, was an oral notice that possession might be recovered under Case 11. Mr Aldous frankly concedes that there is no provision in the statute which so provides; the court’s dispensing power is expressed in unrestricted terms. No doubt if the landlord fails to give any notice at all, the circumstances in which this failure arose may be very material to the exercise of discretion. In this case of course, Mrs Minay did all that could be required of her, short of personal service, to give her tenant the required notice. I do not think there is substance in this submission. The remaining grounds of appeal relate essentially to the exercise by the learned judge of his discretion. Because of our expedition in the hearing of this appeal we have been provided only with an amalgam of counsel’s notes of the judgment, which has not been approved by the judge. However, we think it is clear from that note that the learned judge properly considered the position of both parties before exercising his discretion and that there is no basis upon which it can be argued before us that he erred in the exercise of that discretion. Criticism was made that he accepted as evidence a copy of a carbon copy of the notice sent to Mr Sentongo. Since Mr Sentongo denied that he had ever received the original, the judge was clearly entitled to admit secondary evidence. He received oral evidence concerning this copy document which he, as he was entitled to, fully accepted. In my judgment there is no validity in the remaining grounds. For these reasons I would dismiss this appeal. I should add finally that Mr Aldous submitted that if we allowed the appeal on his main jurisdictional point, the respondent would have to seek possession by fresh proceedings by the issue of an ordinary summons. I do not agree. The point as to jurisdiction was, as previously stated, never taken in the court below. If it had been taken, I have little doubt, having regard to the robust terms in which he decided the other issues in favour of Mrs Minay, that the judge would have adopted the following course either upon the application of Mr Elvidge, who raised this matter before us, or on his own initiative. Relying upon section 103 of the County Courts Act 1959 he would, to make assurance doubly sure, have adopted and applied the provisions of Order 28, r8, of the Rules of the Supreme Court and ordered that the proceedings should be continued as if the claim for possession had been begun by ordinary summons; that Mrs Minay’s affidavit should stand as her particulars of claim and that the service of particulars of defence should be dispensed with. He would then have given judgment and made the order in the terms in which he did. This court has power to make any order which ought to have106 been given or made, and to make such further or other order as the case may require — see Order 59, r10(3). Accordingly, had I accepted Mr Aldous’ main submission as to jurisdiction, I would have made the appropriate order under Order 28, r8 and would have dismissed the appeal. WATKINS LJ agreed and said that he had nothing to add. Also agreeing, STEPHENSON LJ said: I have been more deeply impressed than My Lords by Mr Aldous’ impressive argument, to which I, too, would pay tribute, that SI 1981 no 139 provides a complete code of procedure which must be strictly complied with by landlords, who must satisfy its requirements, and requires a notice to be given in terms which exclude the statutory dispensing power if, but only if, a landlord chooses to resort to the procedure. But I have been persuaded that the court retains its dispensing power in such a case as the present and that this appeal must be dismissed for the reasons given by my Lord, Ackner LJ. The appeal was dismissed with costs, possession to be given within 14 days. Leave to appeal to the House of Lords was refused.