Bostock v Tacher de la Pagerie

Rent Act 1977 — Case 9 in Schedule 15 — Appeal by tenant against county court judge’s order for possession and rent arrears — Tenant also complained of the refusal of an adjournment and of a refusal to stay execution in regard to the rent arrears pending the separate trial of a counterclaim for illness alleged to be due to a defectively installed boiler — The main ground of appeal was a point concerning the landlord’s title and the application of McIntyre v Hardcastle — The landlord was the owner of the flat in question but he held it under a declaration of trust as trustee for himself and a daughter as joint tenants in equity in equal shares, with an undertaking to transfer the property into their joint names when the daughter attained the age of 18 — His claim for possession was based on Case 9 on the ground that the flat was reasonably required by him as a residence for his daughter, who had attained the age of 18 before the commencement of the proceedings for possession — It was submitted by the appellant tenant that if, before the claim for possession came on, the property had been transferred into the joint names of the respondent and his daughter, then, as a result of McIntyre v Hardcastle, they could not have obtained an order for possession for occupation of the flat for the daughter alone — It was suggested that Case 9 should be read subject to some such qualification as ‘required for his daughter in some capacity other than as equitable owner or for his daughter, his daughter not being a beneficial joint tenant’ — Held, rejecting this submission, that there was no justification for reading the wording with any such gloss — The respondent was the landlord; there was evidence that the flat was reasonably required for occupation by the daughter, who had been medically advised to have a flat of her own, away from the paternal or maternal roof; and it had been amply shown that the greater hardship was on the side of the landlord’s daughter — In all the circumstances it had been reasonable to make the order — The court also rejected the appellant’s complaints about the judge’s refusal of adjournment and refusal to stay execution of judgment for arrears of rent pending the trial of the counterclaim — Appeal dismissed The following case is referred to in this report. McIntyre v Hardcastle [1948] 2 KB 82; [1948] 1 All ER 696, CA This was an appeal by Monique Tacher de la Pagerie, the tenant, from a decision of Judge Vick, at Westminster County Court, awarding the landlord, the present respondent, David Ashton Bostock, possession of Flat 5, 91 St George’s Drive, London SW1,105 and also a sum of £3,800 in respect of arrears of rent. Judge Vick had upheld a ruling given by Judge McDonnell that a counterclaim for damages by the present appellant should be tried separately from the proceedings in regard to possession and rent arrears. Miss D I Romney (instructed by Simmonds Church Smiles & Co) appeared on behalf of the appellant; Kim Lewison (instructed by Piper Smith & Basham) represented the respondent. Giving judgment, DILLON LJ said: This is an appeal by the defendant in the original action against a judgment of His Honour Judge Vick, given in the Westminster County Court on September 26 1986, whereby he awarded the plaintiff in the action (the respondent to this appeal) possession of a flat called Flat 5, 91 St George’s Drive, London SW1; and also judgment for a sum of £3,800 arrears of rent. The history of the matter is somewhat complicated and it is not helped by the way the papers are included in different bundles. It appears, however, that the respondent bought a leasehold interest in the flat on October 30 1983. In February 1984 he let the flat for two months to the appellant. That was renewed in April 1984 for six months from April 27 1984 and renewed again in October 1984 for a further six months from October 1984 to April 1985. The respondent, Mr David Bostock, has a daughter, Sophia Ashton Bostock, who attained the age of 18 on September 2 1985. The respondent brought proceedings for possession of the flat under Case 9 of Schedule 15 to the Rent Act 1977 on the ground that the flat was reasonably required by him as landlord for occupation as a residence for his daughter, Sophia. The court on such an application has to be satisfied that the circumstances are made out and has to consider matters of greater hardship and whether it is reasonable to make such an order. Proceedings to that effect were begun in 1985. The defendant ceased paying any rent for the flat in October 1985. The basis for this was that, it is said on her behalf in a counterclaim subsequently launched, she suffered illness because a boiler in the flat had not been properly installed by the respondent’s contractors, and the boiler had further been boxed in, in a way that concentrated escaping fumes, by either those contractors or servants or agents of the respondent. It was said that the result of that was that carbon monoxide gas escaped into the flat and, as a result, she suffered very unpleasant symptoms, migraine and nausea, and intolerance to fumes and smoke, so that she was unable to take up any employment. She therefore ceased to pay rent, claiming by way of counterclaim unquantified damages for alleged negligence and breach of duty on the part of the respondent and also on the part of the contractors who had installed the boiler. At a fairly advanced stage of the pleadings in the county court it was claimed that there was a right to set off the sums due under the counterclaim against the accruing rent. She had paid no rent since October 27 1985. The pleadings were amended to include a claim for possession under ground 1 on the basis that rent had not been paid. However, in July 1986 there was an order by the registrar of the county court that the claim for possession, that is to say the action, be tried separately from the counterclaim. There was an appeal by the present appellant against that order, which came before His Honour Judge McDonnell on September 15 1986. He dismissed the appeal and upheld the ruling that the counterclaim be tried separately. He was also asked to direct an adjournment of the claim on the ground that witnesses for the present appellant were not available, but he refused to allow any adjournment. The claim had by then been fixed for hearing on September 25 1986. When it came on for hearing on that date, the solicitors who up to then had been acting for the appellant applied to be removed from the record, and that application was granted. The appellant then renewed her application for an adjournment of the hearing, but that was refused and at the end of the trial, on September 26, the judge made the order which I have mentioned. Since then, there was an application to this court for a stay of the possession order, which I granted in December, over the first week of this term, on the footing that the case would come on for hearing then. It did not. The stay was then discharged and we are told that the possession order has since been executed. The first ground of appeal which has been put before us today by Miss Romney is that the judge exercised his discretion wrongly when he refused to grant the appellant an adjournment on September 25, after her solicitors had been discharged from the record. It appears that the reasons why she sought a stay then were, first, that the solicitors had ceased to act for her and she was in person; second, that she then intended to apply for legal aid; and, third, that she had not got the witnesses available. So far as legal aid is concerned, that is a matter which could perfectly well have been considered long before. As to the witnesses’ availability, Judge Vick pointed out that that seemed to be the same point that Judge McDonnell had dealt with on September 15. As for the fact that she was acting in person and no longer had solicitors, that was obviously appreciated by the judge. He said: The judge is limited in what assistance he can give to a litigant in person, but I will assist if I can. Whether or not there should have been an adjournment was a matter entirely for the discretion of the judge. For my part I do not take the view that this court should interfere. The main ground of this appeal arises from the wording in the provisions of the transfer to the respondent of the property. That document transferred a registered title of the flat to the respondent. There was then a declaration that the respondent held the property as trustee for himself and Sophia Ashton Bostock as joint tenants in equity in equal shares; and he undertook to transfer the property into joint names at the date on which Sophia attained the age of 18 years. It is said that if, before the claim for possession came on, the property had been transferred into the joint names of the respondent and Sophia, then, under the decision of this court in McIntyre v Hardcastle [1948] 2 KB 82, the joint landlords could not, under Case 9, have obtained an order for possession for the property to be occupied by Sophia alone. Whether or not that would have been so if the facts had been that way round, however, it is conceded that as no transfer had been executed the respondent is the sole landlord. The appellant as lessee is not concerned with the trust relationship between the respondent and Sophia. She is concerned only in dealing with her own landlord. Case 9 provides for possession, subject to hardship and reasonableness, where the dwelling-house is reasonably required by the landlord for occupation as a residence for himself or for any son or daughter of his over 18 years of age. That wording is clear in its application to the facts as they are. The respondent does require possession for occupation by Sophia. Indeed, there was ample evidence to support the judge’s findings on Sophia’s need for this flat. She has suffered from anorexia, there is a history of a broken marriage of her parents, and strong medical recommendations that she needs a flat of her own away from the paternal or, for that matter, the maternal roof. The case of hardship, therefore, was amply made out; and so was the case of reasonableness, subject to the point which is argued on what was called the McIntyre v Hardcastle point. It was indeed urged that the judge’s finding of fact failed to take proper account of certain documents produced and certain offers of a flat made to the appellant herself. But, as to that, there was evidence to support the findings of the judge: he accepted the evidence of the respondent and this court could not interfere with his findings of fact. It is urged that the wording of Case 9 should be read subject to a qualification ‘required for his daughter in some capacity other than as equitable owner or for his daughter, his daughter not being a beneficial joint tenant’. I see no justification for reading in any gloss on the wording of the provisions in the Schedule to the Act. She is not the landlord. She is the daughter of the landlord. Therefore, the requirements are satisfied. Equally, I do not for my part see that the fact that she would have been the landlord if a transfer had been executed can be prayed in aid as a ground for saying that it is not reasonable to grant the order for possession under Case 9 in the circumstances of this case. The case has to be dealt with on the facts as they are, not on the facts as they might have been. There is no evidence, so far as I am aware, to establish that there was any deliberate taking advantage of a loophole in the Act, even if it had been relevant if that had been the case. Therefore, I would reject that main ground of appeal. It is not fully dealt with in the judgment of the learned judge: he does not refer to McIntyre v Hardcastle, but he does refer to authorities establishing that, despite any question of a trust element, the respondent is the landlord. He then deals with the provisions of the deeds and says that they do not raise any reason why he should not make the possession order. It is said that the judge erred on reasonableness because he mentioned that there were the arrears of rent, and he did not take into account the counterclaim which was ultimately pleaded as a set-off; and it is said also that though he may have entered judgment for the106 arrears of rent, he should have stayed execution of the judgment pending the trial of the counterclaim. Those points, in a way separate, I would take together. One thing to which the judge drew attention is the appalling obscurity of the pleading of the counterclaim. It is very difficult to discern what it is saying, and the damages claimed are wholly unparticularised. It is said there was evidence from the appellant at the trial that she had been unable, because of her illness, to take jobs which would have paid her £10,000 per year. But the pleading does not give any particulars at all, even of special damages, and this is a case where special damage would be the nub of the claim in the matter of damages. Furthermore, exactly how the claim is put on the matter of liability is obscure, because it is accepted in this court, at any rate by Miss Romney for the appellant, that the respondent could not have been liable for the defective installation of the boiler if he did not know of the defect and left it to independent contractors to install the boiler. There is the further factor that the case appears to be by no means ready for trial, in that even now, we were told, legal aid had not been obtained to prosecute that counterclaim. In all the circumstances, while it may very well be the normal rule and practice that any judgment on a claim which was given before the hearing of the counterclaim should be stayed pending the hearing of the counterclaim, I take the view that in the particular circumstances of this case the judge was entitled to grant judgment on the claim for the arrears of rent, without staying that pending the hearing of this highly nebulous and ill-pleaded counterclaim. It must equally follow that he was entitled to have in mind, though he does not seem to have attached great importance to it in considering the reasonableness of making the possession order, that there were the admitted arrears of rent to the liability for which there was no defence apart from the counterclaim: there were those on the one hand, while the counterclaim was so nebulous and unparticularised that he could not take it into the balance at all. I would therefore dismiss this appeal. GLIDEWELL LJ agreed and did not add anything. The appeal was dismissed, with costs not to be enforced without leave; legal aid taxation and further directions as to appellant’s costs.