Rent Act 1977 — Registration of fair rents — Omissions and inaccuracies in completion of form of application to rent officer — Absence of name of joint tenant, failure to mention garage included in tenancy, misstatement as to amount of existing rent — Matter left open in decision in Chapman v Earl — Whether omission or misstatement in regard to any of the ‘prescribed particulars’ (as distinct from the failure to specify the rent which it was sought to register) rendered the application to the rent officer invalid — County court judge, in an action by landlords for arrears of rent, based on the amount of fair rent registered, upheld tenants’ contention that, because of the defects in the application, the rent claimed by the landlords was not due — Held that the requirement as to the application containing the ‘prescribed particulars’ was not mandatory in the sense that every detail must be correct, otherwise the application would be invalid — It was directory as indicating the matters which should be described — The tenants’ defence was unmeritorious, particularly as no complaint had been made against the registrations (two with a three-year interval between them) until the landlords’ present action for rent — Appeal against county court judge’s decision allowed — Comments on the judge’s purported exercise of jurisdiction in relation to an existing registration
This was an
appeal by landlords, Druid Development Co (Bingley) Ltd, against a decision of
Judge Gosnay at Keighley County Court in favour of tenants, Norman Kay and his
wife, Freda Alice Kay, in an action by the landlords for arrears of rent; the
arrears claimed were calculated on fair rents registered by the rent officer.
FS Phillimore
(instructed by Hatchett, Jones & Kidgell, agents for Turner & Wall, of
Keighley) appeared on behalf of the appellants; John B Briggs (instructed by
Pittock, Gilgrass & Cordingley, of Bingley) represented the respondents.
Giving
judgment, WALLER LJ said: The plaintiff appellants are a property development
company who were suing the defendant respondents for arrears based on fair
rents assessed by the rent officer before His Honour Judge Gosnay sitting at
Keighley County Court. The defendants were a solicitor’s clerk and his wife.
They said that the rent was not due because of defects in the notice to the
rent officer — the absence of the name of the wife, the fact that in the first
application a garage was not mentioned, the fact that the rent was understated
— and they counterclaimed for overpayments of rent which had been made on the
basis of the rent officer’s determination. The learned judge, having been
referred to the case of Chapman v Earl [1968] 1 WLR 1315, feeling
bound by that decision that the provisions of the statute were mandatory, gave
judgment for the defendants. The plaintiffs appeal to this court.
The original
agreement between the plaintiff company and the defendants was dated October 1
1970 and the first of the applications to the rent officer was dated October 23
1973. The original agreement, as I have already said, was between the company
on the one hand and the husband and wife, Norman Kay and Freda Alice Kay, on
the other. But the application to the rent officer did not mention the wife,
nor did it mention the garage, which was also part of the property which was
let in the original agreement. That application was made on October 23 1973,
and as a result of that application, albeit without the garage, the rent
officer assessed the fair rent at £338, and thereafter that rent was paid by
the respondents.
There was a
further application to the rent officer on October 17 1976. Again on that
application no mention was made of the wife as being cotenant of the property,
but the property demised was said to include the garage. But in quoting the
previous rent the figure in the application was that fixed as fair rent for the
property without the garage. The rent officer fixed at some time about that
time — the exact date we have not been told — a fair rent of £572 a year for
the whole of the property, that is the cottage and the garage. No protest was
made against that higher rent, but the defendants fell into arrears with that
higher rent, and they were saying then that they were not paying the rent
because there were certain repairs that should be done.
On July 4 1978
the landlords issued proceedings in the county court claiming arrears of rent,
particulars of which were set out in particulars of claim, totalling some £138.
They were, in the context of the total rent, comparatively small sums arising
at various times. The defendants put in a defence and counterclaim and for the
first time they alleged that the rent was not a properly determined ‘fair
rent’, because the application on which it was based did not accurately
describe the demised premises and because it did not correctly state the rent
then payable, and, in relation to the second application, that it incorrectly
stated the rent then payable. There was a counterclaim which included the claim
for repairs, and in due course there was a defence to that counterclaim
delivered in October. Some time thereafter — the date we do not know exactly,
but probably somewhere in the middle of 1979 — the counterclaim was amended to
add as one of the defects of the notice a failure to state the name of the
tenants correctly and enlarging the statement about the rent. That was clearly
an amendment of that part of the counterclaim. Although the notice to the rent
officer would, according to the evidence, have been served on the defendants in
1973 and the second notice in 1976, it was only when those proceedings were
started that any complaint was made about it.
The matter
depends on the provisions of the Rent Act 1968 — the Rent Act that was then in
force — and in particular section 44(1) and (2). Section 44 reads: ‘An
application for the registration of a rent for a dwelling-house may be made to
the rent officer by the landlord or the tenant, or jointly by the landlord and
the tenant, under a regulated tenancy of the dwelling-house’; and by subsection
(2) — the important subsection — ‘Any such application must be in the
prescribed form and contain the prescribed particulars in addition to the rent
which it is sought to register’, and ‘prescribed’ is defined in section 51 as
meaning ‘prescribed by regulations . . . and references to a prescribed form
include references to a form substantially to the same effect as the prescribed
form’.
The learned
judge, relying upon the case of Chapman v Earl, came to the
conclusion that the requirement for particulars in addition to the rent was a
mandatory requirement, and accordingly he gave judgment for the defendants. I
very much doubt whether he had jurisdiction to set aside a fair rent, against
which there had been no appeal to the assessment committee and against which
there had been no application for setting aside by way of certiorari
because of some legal invalidity, but, in my opinion, it is unnecessary for
this court to decide that in this case.
It is,
however, necessary to look first at the case of Chapman v Earl.
It was cited to the learned judge from the All England Reports, where it is
reported in [1968] 2 All ER 1214. In that case an application was made to the
Divisional Court to set aside a determination of a fair rent, made by the rent
assessment committee, on the ground that the application to the rent officer
did not state the rent which it was sought to establish as a fair rent. The
Divisional Court came to the conclusion that it was essential that the fair
rent claim should be stated. Fisher J in the course of giving judgment said
this at p 1219:
It was
strongly pressed on us by counsel, who appeared on the instructions of the
assessment committee to assist the court, that it would be equally absurd and
destructive of the intention of Parliament if the omission or misstatement of
any one of the prescribed particulars invalidated the whole proceedings; and
that, if the word ‘must’ is to be treated as directory in relation to any part
of the subject matter of para 2 of Schedule 3, it must be directory in relation
to all parts including the proposed rent. This argument would be stronger if
para 2 stood by itself, and if instead of being specially mentioned the
proposed rent were merely one of the prescribed particulars. We consider that
para 1 of the Schedule, read with paras 2 and 5 to 8 —
they were
similar words in an earlier Act
— makes the
statement of the proposed rent an essential condition to the exercise by the
rent officer of his powers. We do not find it necessary to decide whether the
omission or misstatement of any of the prescribed particulars would render the
application a nullity; but even if the right view were that it would not, that
would not invalidate the conclusion which we have reached about the effect of
the omission of the proposed rent.
So the
Divisional Court then were emphasising in that judgment, which was the judgment
of the court, that the fact that the application had to state the rent which it
is sought to register was fundamental, but they were not deciding — and they
were deliberately not deciding — whether it was mandatory that the prescribed
particulars should be accurate or whether they were merely there for guidance.
It is, I
think, fair to the judge trying this case to quote from the headnote in the All
England Reports, because it may well be that he was misled by that headnote.
Failure by an
applicant for registration of a rent for a dwelling-house under section 26 of,
and Schedule 3 to, the Rent Act 1965 to specify in his application the rent
which it is sought to register is a fatal defect, having the consequence that
the application and subsequent proceedings on it are a nullity and that
certiorari lies to quash the determination
and further on
for the
requirement in para 2 . . . that the application ‘must’ contain the prescribed
particulars in addition to the rent which it is sought to register is, on the
true construction of that Schedule, an imperative requirement
and it is fair
to say that the headnote quotes part of the judgment of Fisher J in support of
that proposition.
But careful
reading of the case shows that the last line was a dictum and was not part of
the decision and had the learned judge been referred to the Weekly Law Reports
of the same case — [1968] 1 WLR 1315, the headnote there reads:
Held,
dismissing the appeals and granting orders of certiorari, that the statement of
the proposed rent was an essential condition to the exercise by the rent
officer of his powers; and that, accordingly, failure to specify a rent was a
fatal defect which could not be waived and which rendered the application and
all subsequent proceedings a nullity
he might not
have been misled.
That case was
followed by another case in the Divisional Court, R v London Rent
Assessment Panel ex parte Braq Investments Ltd [1969] 2 All ER 1012, where
the Lord Chief Justice, Lord Parker, made clear the distinction which I have
just drawn.
In my opinion
the requirements for the prescribed particulars are not mandatory in the sense
that every word must be correct otherwise the notice is invalid. They are
directory as indicating the things which should be described. It is of course
desirable that the tenants should be properly described. It is of course
desirable that the property let should also be properly described, and there
may arise circumstances where misdescription would cause injustice, but there
was no injustice in this case. The first defendant made no complaint of the
omission of his wife’s name for a number of years. Obviously that was because
it made no difference. No complaint was made of the omission of the garage from
the first application, again because it made no difference, because it was
clear that the rent officer was assessing the fair rent without including the
garage. No complaint was made of the rent statement as being too low, again. I
should say, because it made no difference or — although the contrary was
submitted by Mr Briggs — if it did make a difference it would be a difference
in favour of the tenant rather than the landlord. The previous rent being set
very low, the rent officer was less likely to put it up as high as he would
otherwise.
I have no
hesitation in saying in this case that either there was adequate compliance
with the requirements of section 44(2) or, if there was not adequate
compliance, then the defendants have certainly waived any fault that there
would then be.
Accordingly,
in my judgment, this appeal should be allowed and the wholly unmeritorious
defence and counterclaim should be dismissed.
Agreeing, FOX
LJ said: Applications under the Rent Act 1968 and its successors for the
determination of a fair rent were and are often made by lay persons without
professional assistance, and I think that a technical approach to the requirements
as to the contents of application forms is not to be encouraged in relation to
them. Chapman v Earl, to which my Lord has referred, does not, in
my view, assist. Particularisation of the rent is specifically referred to in
the enactment. That was indeed a matter which was referred to by Fisher J in
his judgment. Where the purpose of the application is the determination of a
fair rent, it might be said that it was fundamental that the other side should
be made aware from the application what rent is being sought.
The present
case is, it seems to me, quite different. The purpose of the statutory
requirements as to the contents of the formal application is the fair and
speedy determination of the issue. I cannot see that an error in the
description of the parties or the premises or the existing rent should
necessarily be regarded as anything more than a formality. There may be cases
in which it could amount to something more, in which it could amount to a
fundamental error. For example, because an interested party was not properly
described and therefore was not given proper notice of the application, though
even that might perhaps be better dealt with on general principles of natural
justice than any other.
Be that as it
may, nothing of that sort occurred here. There is no suggestion that the
tenants or the tribunal or anybody else was in any way misled by the contents
of the application form to the prejudice of the tenants. Indeed over a period
of years the tenants raised no objection at all to the tribunal’s determination
of the fair rent. The tenants did so in the end only for the purposes of
raising a defence to this action. In my judgment that defence is without
substance and this appeal should be allowed.
Also agreeing
that the appeal succeeded, SIR SEBAG SHAW said: I would only add that, in my
view, the learned county court judge had no jurisdiction to disregard, let
alone to repudiate, the registration of the fair rent as determined by the rent
officer. If appropriate steps had been taken the matter could have been carried
to the rent assessment committee. From there the only means of review is by way
of application to the High Court for judicial review or under the Tribunals and
Inquiries Act 1958. Neither course was taken in this case. The learned county
court judge was in error in assuming that it was open to him to regard this
situation as a matter in which he had a discretion.
I, too, would
allow this appeal.
The appeal was allowed with costs. Leave to appeal to
the House of Lords was refused.
