Crown Estate Commissioners v Wordsworth and another

Dwellings forming part of Crown Estate where the Crown’s interest as landlord is managed by the Crown Estate Commissioners — Rent Act protection extended to Crown tenants by amendments made by Housing Act 1980 — New section 13 of Rent Act 1977 substituted by section 73(1) of Housing Act 1980 — Change came into operation on November 28 1980 — Question as to whether the Rent Act protection applied in a case where a Crown tenant’s lease had expired by effluxion of time before November 28 1980 — Tenant claimed that the new section 13 had a retrospective effect so that she became a statutory tenant under the Rent Act from November 28 1980, having held over after the expiry of her fixed-term tenancy — Held that the alteration in the position of certain Crown tenants made by the Act of 1980 did not have the retrospective effect claimed — Tenant in the present case never acquired a protected tenancy since her lease had expired before section 73(1) of the Act of 1980 came into force and hence she could not have become a statutory tenant — Appeal from decision of county court judge granting the Crown Estate Commissioners a possession order dismissed This was an appeal by Mr and Mrs Wordsworth from a decision of Judge Hayman at Westminster County Court granting a possession order to the plaintiffs in the action, the Crown Estate Commissioners, in respect of a flat at 49-51 Carnaby Street, London W1. The flat had been let by the plaintiffs to Mrs Wordsworth, Mr Wordsworth having been a surety. Lord Gifford QC (instructed by Central London Community Law Centre) appeared on behalf of the appellants; R F D Barlow (instructed by the Treasury Solicitor) represented the respondents. Giving the judgment of the court, ORMROD LJ said: This is an appeal from an order made by His Honour Judge Hayman, sitting at Westminster County Court on May 11 1981. The learned judge made an order for possession of a flat at 49-51 Carnaby Street, London W1, in favour of the plaintiffs, the Crown Estate Commissioners, against the defendants, Mr and Mrs Wordsworth. The flat had been let by the plaintiffs to Mrs Wordsworth by a lease dated November 8 1973, for a term of six years from September 29 1973. Mr Wordsworth was a surety for Mrs Wordsworth. Owing to ill health Mrs Wordsworth no longer resides at the flat, which is at present occupied by Mr Wordsworth and the children of the marriage. The lease expired by effluxion of time on September 29 1979, but Mr Wordsworth and the children are still in occupation of the flat. There have been considerable negotiations between the parties but nothing was agreed between them and nothing in this appeal turns on these negotiations. Eventually, by a plaint dated November 6 1980 the plaintiffs commenced these proceedings for possession against Mr and Mrs Wordsworth. Mrs Wordsworth has taken no part in them. Mr Wordsworth appeared in person in the court below and attempted, unsuccessfully, to resist an order for possession. In this court, he has been very ably represented by Lord Gifford QC. The point in this appeal arises in this way. The flat, in ordinary circumstances, would be subject to the Rent Act 1977, and Mrs Wordsworth would now be a statutory tenant of the premises from the expiry of the lease. However, section 13 of the Rent Act 1977 provides by subsection (1) that a tenancy shall not be a protected tenancy at any time when the interest of the landlord belongs to the Crown, or to a government department, and subsection (2) provides that a person ‘shall not at any time be a statutory tenant of a dwelling-house if the interest of his immediate landlord would at that time belong [to the Crown]’. In other words the provisions of the Rent Act 1977 do not apply in this respect against the Crown. It is not at once obvious why it was thought necessary to enact subsection (2) because if the tenancy is not a protected tenancy under the Act, no one could become a statutory tenant of the premises: see section 2(1)(a). Had section 13 continued to be in force in its original form in the 1977 Act, Mr and Mrs Wordsworth would have had no defence to the plaintiffs’ claim. However, the position of tenants of Crown property which is under the management of the Crown Estate Commissioners was changed by section 73(1) of the Housing Act 1980. That subsection substituted a differently worded section for section 13 of the 1977 Act. In its new form the section re-enacts the provisions of subsection (1) and (2) of section 13, but contains a new proviso, the effect of which is to bring property belonging to the Crown within the Rent Act 1977 if it is managed by the Crown Estate Commissioners. The Housing Act 1980 was passed on August 8 1980, but section 73 was not brought into operation until November 28 1980, ie after these proceedings were started on November 6 1980, but before the date of judgment. Nothing turns on these dates, but the point at issue is whether, on its true construction, the effect of section 73(1) of the 1980 Act is to give Mrs Wordsworth the protection of a statutory tenant from November 28 1980. Lord Gifford has argued, most persuasively, that this subsection should be given retrospective effect so that Mrs Wordsworth, whose lease had expired in September 1979, and who had been holding over thereafter, became a statutory tenant on the coming into effect of the subsection. His argument proceeds from three bases. First, he relies on the fact that section 73(1) introduced a new section 13 into the 1977 Act. However, the effect of this provision is neither more nor less than an amendment of the original section 13. The same result could have been achieved by adding a new proviso to the section in its original form, excepting property managed by the plaintiffs from the exemption they had hitherto enjoyed. Normally such an amendment would take effect only from the date when it came into force. Second, he submits that section 73(3), which makes a similar amendment to the Rent (Agriculture) Act 1976, section 5, is unquestionably retrospective in its effect, and that it would be anomalous if subsection (1) did not have, by analogy, a retrospective effect. The retrospective effect of subsection (3) is derived from specific statutory provision. Subsection (5) of section 73 brings in Schedule 8 to the 1980 Act, which contains consequential provisions. Paragraph 7 of this schedule expressly provides that subsection (3) shall have retrospective effect by making the ‘operative date’ for the purposes of the application of the 1976 Act to cases involving the Crown Estate Commissioners the date on which section 73 comes into effect. No corresponding provision is to be found in that part of Schedule 8, which relates to the 1977 Act. The third basis of the argument depends on the history of the Rent Act legislation. Lord Gifford has taken us, with great expertise, through this jungle of legislation, and he invites us to hold that a very liberal technique of statutory interpretation has been adopted by this court in relation to it. He relies particularly upon Remon v City of London Real Property Co Ltd [1921] 1 KB 49, a decision of this court under the Increase of Rent and Mortgage Interest (Restrictions) Act 1920, in which it was held that to give practical effect to that Act it was necessary to adopt a very strained construction to the words ‘tenant’ and ‘let’ so that ‘tenant’ included former tenant and ‘let’ included what Bankes and Scrutton LJJ called the relationship of statutory tenant. He also relied on Hutchinson v Jauncey [1950] 1 KB 574, a decision under the Landlord and Tenant (Rent Control) Act 1949, which followed Remon’s case. It is to be noted that these two Acts contained no transitional or retrospective provisions, and the court felt bound, by straining the language, to cover the omission as best it could. Lord Gifford’s survey of the subsequent Acts, which it is not necessary to refer to in detail, shows that Parliament had recognised the difficulty and, in one way or another, had expressly provided for transitional or retrospective problems. Contrary to his submission, this survey suggests that when Parliamant intends this kind of legislation to operate retrospectively, it normally includes an appropriate provision to have that effect. There is nothing of this kind in the 1980 Act. In this connection the judgments of Brandon and Waller LJJ in Harrison v Hammersmith and Fulham London Borough Council [1981] 1 WLR 650 are very much in point. The problem raised by this case is much nearer that which was considered in Harrison’s case. There it was held that the ordinary rule of construction that retrospective effect should not be given to Acts of Parliament unless they contained an express provision to that effect, or it was a necessary implication, should be applied. The present legislation was plainly neither urgent nor applicable to a large group of persons and there is nothing to suggest that a retrospective effect was intended in relation to section 73(1). On the contrary, giving the language its ordinary meaning, it has no such effect. The effect of section 73(1) is that a tenancy of Crown property, managed by the Crown Estate Commissioners, is no longer prevented from being a protected tenancy under the 1977 Act, and the tenant is no longer prevented from being a statutory tenant after the subsection comes into force. On the facts of this case Mrs Wordsworth did not become and could not become a statutory tenant because a statutory tenancy arises only if the person106 concerned was a protected tenant ‘immediately before that termination’, ie of the protected tenancy. She never had a protected tenancy because her lease expired before section 73(1) of the 1980 Act came into force, so she could not be a statutory tenant. It would require more than strained construction of section 13 in its new form to convert her from a former tenant holding over into a statutory tenant after November 28 1980; it would be necessary to read a number of additional words into the subsection, the drafting of which would require considerable ingenuity. Section 73(1) means what it says, ie after November 28 1980, when it came into force, tenants of the Crown Estate Commissioners are protected tenants, if they fall within the scope of the other provisions of the Rent Act 1977, and thereafter may become statutory tenants. For these reasons, Mr Barlow’s succinct and forceful submission succeeds and Lord Gifford’s ingenious argument fails. This appeal must, therefore, be dismissed. The appeal was dismissed with costs.