Metropolitan Properties Co Ltd v Griffiths

Landlord and tenant — Rent Act 1977 — Action by landlords against statutory tenant for possession of flat on the ground of breach of covenants — The particular breach alleged was occupation of the flat by named persons, in addition to the tenant, contrary to a covenant not, inter alia, to assign, charge, underlet or part with possession or occupation or share the occupation of the flat or any part of it — The landlords’ case depended on the inference, if any, to be drawn from a letter to their solicitors from the electoral registration officer of the City of Westminster — This letter showed that a named individual, in addition to the tenant, was on the register of electors for 1980 for the address of the flat and had therefore been102 resident in the flat on October 10 1979 for the purposes of the Representation of the People Act 1949 — Held that the entry in the register of electors did not constitute sufficient evidence that the presence of the named individual was of a nature and quality which created a breach of the tenant’s covenants — Form A, which is addressed to occupiers, might not have been completed or might have been completed under a misapprehension as to facts or requirements, the identity of the person who completed it, if it was completed, was not known, and in any case the categories of persons entitled to be registered were very wide — There were too many imponderables — Landlords’ appeal from decision of county court judge refusing possession order dismissed This was an appeal by landlords, Metropolitan Properties Co Ltd, from a decision of Judge Warde at Bloomsbury and Marylebone County Court dismissing an action for possession against Miss Mary Griffiths, tenant of flat 107 St Mary’s Mansions, St Mary’s Terrace, Westminster. David Neuberger (instructed by J Memery & Co) appeared on behalf of the appellants; R Spearman (instructed by Moss, Beachley) represented the respondent. Giving the judgment of the court at the invitation of Lawton LJ, TEMPLEMAN LJ said: This is an appeal from a decision of His Honour Judge Warde given in the Bloomsbury and Marylebone County Court on March 17 1981, whereby he dismissed an action for possession of the flat 107 St Mary’s Mansions, St Mary’s Terrace, Westminster, brought by the plaintiff landlords, Metropolitan Properties Co Ltd, against the defendant tenant, Miss Mary Griffiths. Miss Griffiths became tenant of the flat on the terms of a tenancy agreement dated November 4 1965 for a period of three years. After the expiry of that term she remained in possession of the flat as statutory tenant. By particulars of claim dated August 21 1980 the landlords sought possession on the grounds that Miss Griffiths was in breach of tenant’s covenants in the agreement, namely clause 2(9) and clause 2(11). So far as material those covenants required Miss Griffiths to use the flat as a private dwelling-house only in the possession of one family, not to accommodate boarders, lodgers or paying guests and not to assign, charge, underlet or part with possession or occupation or share the occupation of the flat or any part of it, either furnished or unfurnished. The particulars of claim alleged occupation of the flat by specific persons at various times from 1967 onwards, including in those persons a Miss Jean Rimmer and, in or about 1980, a Mr Murray Cooper. By her defence Miss Griffiths did not admit any breach of covenant, pleaded waiver of any breach of covenant and in any event pleaded that it would not be reasonable in all the circumstances for the court to make an order for possession. It was conceded that the landlords could not complain of the occupation of Miss Rimmer, who has been sharing the flat for a number of years to the knowledge of the landlords. The landlords called oral evidence about the other alleged breaches of covenant, but the learned judge was not impressed. At the conclusion of the landlords’ witnesses, counsel representing Miss Griffiths decided not to call any evidence on her behalf. In the circumstances, as the learned judge held, the landlords’ case depended on the inference, if any, to be drawn from a letter dated September 18 1980. The letter was addressed to the landlords’ solicitors and was expressed to be signed by the electoral registration officer of the City of Westminster. The letter stated that ‘the names which appear in the register of electors in my custody for the years 1965 to 1980 inclusive in respect of the address 107 St Mary’s Mansions are as follows’. Miss Griffiths appeared in 1966 and every subsequent year except 1974. Miss Rimmer appeared in 1967 and every subsequent year. The entry for 1980 specified Mr Murray Cooper, Miss Griffiths and Miss Rimmer in that order. Sections 1 and 2 of the Representation of the People Act 1949 provide that a person entitled to vote must be resident in the relevant electoral area on the qualifying date and must be registered in the register of electors for that area. Section 6 provides for the appointment of a registration officer for each parliamentary constituency. By section 7 a registration officer must prepare and publish combined registers of parliamentary electors and local government electors for the electoral areas included in his constituency. By section 9, with a view to the preparation of the register, the registration officer shall have a house-to-house or other sufficient inquiry made as to the persons entitled to be registered and must prepare and publish electors’ lists showing the persons appearing to him to be entitled to be registered, together with their qualifying addresses. By section 39 the register of electors shall, for the purposes of Part I of the Act, be conclusive on the question whether or not a person registered therein was on the qualifying date resident at the address shown. It is common ground that the qualifying date for the year 1980 was October 10 1979. For the purposes of Part I of the Representation of the People Act 1949, therefore, the admitted registration of Mr Murray Cooper proves conclusively that he was resident at the flat on October 10 1979. To determine whether the registration of Mr Murray Cooper under the Act was any evidence at all against Miss Griffiths and that Mr Cooper was resident at the flat in such manner as to constitute a breach of the relevant tenant’s covenants, it is necessary to examine the machinery whereby the register was compiled. Section 42 of the 1949 Act gave power for provision to be made by regulations with respect to the procedure to be followed in the preparation of the register. The relevant regulations are now the Representation of the People Regulations 1974 (SI 1974 No 648). Some slight amendments have been made to those regulations but they are not material to this appeal. By regulation 25 the registration officer may require any householder or person owning or occupying any premises within the area for which he acts, or the agent or factor of any such person, to give information required for the purposes of his registration duties. By regulation 69(1) the Form A to the regulations shall be used for the purpose for which it is expressed to be applicable. By regulation 74(1) if any person fails to comply with or gives false information in pursuance of any requisition of the registration officer to give information required for the purposes of his registration duties pursuant to regulation 25, that person is liable on summary conviction to a fine not exceeding £50. Form A is delivered or posted addressed to the occupier of each residence within the area of the registration officer. Form A is headed ‘Return by occupier as to Residents’. It specifies the qualifying date, which is October 10 in every year. It informs the recipient that the Form A is sent by the electoral registration officer. It says inter alia ‘I have to compile and publish an up to date Register of Electors . . . To do so, I need information which you, as occupier, are obliged by law to supply . . . The notes within tell you how to fill up the form, but if you need further help, I shall be glad to give it . . . Please complete and sign this form, and return it to me now . . .’. There is then a table where the occupier must specify the full address of the flat, room, floor or house of which he is the occupier. There is a second table to be completed of ‘Residents eligible to be included (see notes 1 and 2)’. The table requires the surname, title and full christian names of each eligible resident to be inserted. There then follows the question ‘Is any part of your house/flat separately occupied by persons not entered above?’  with a direction to answer Yes or No. There follows a declaration in these terms ‘I declare that to the best of my knowledge and belief the particulars given above are true and accurate . . .’. Under the declaration the occupier who is completing the form must sign. There then follow the notes. Note 1 specifies, so far as material ‘You are required to enter all British subjects . . . who will be resident at your address on October 10’ in the relevant year . . . ‘Including (a) Those who normally live at your address and are temporarily away . . . (b) Resident guests (but not short stay visitors). (c) Lodgers and resident domestics. (d) Anyone who is away working, unless his absence will be for more than six months’. There then follow other categories and instructions not material to this case, and finally there are instructions to return the form. The letter dated September 18 1980 is conclusive for the purposes of Part I of the Registration of the People Act 1949 that Mr103 Murray Cooper was resident at the flat on October 10 1979. For the landlords it was argued that the letter constituted prima facie evidence that Mr Murray Cooper was present at the flat at any rate on October 10 1979 and that his presence was of a nature and quality which constituted a breach by Miss Griffiths of the tenant’s covenants, and that in the absence of any evidence to the contrary the learned judge was bound in law to find that breach of covenant had been proved by the landlords. The landlords rely on section 1 of the Evidence Act 1845 and section 14 of the Evidence Act 1851, but even if these sections apply they only cover the same ground as the concession made by counsel for Miss Griffiths that the letter dated September 18 1980 was evidence that a Mr Murray Cooper was registered in the register of electors for the year 1980 in respect of the flat, a concession which avoided the necessity for calling the registration officer or producing the register to prove this fact. Section 9 of the Civil Evidence Act 1968 provides, inter alia, (subsection (2)c) that any rule of law ‘whereby in any civil proceedings public documents (for example public registers and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated therein’ shall continue to have effect. No authority was cited to us that there is or was any rule of law that entries in the register of electors for the purposes of the Representation of the People Act 1949 are admissible evidence of the occupation of any premises, let alone of the quality of occupation, of any person, as against any party to litigation, without at any rate production of the relevant Form A and some evidence linking the signature on Form A with the litigant. It is doubtful whether section 39 of the 1949 Act, which for the purposes of Part I of the Act makes the entry in the register conclusive of the fact that the person registered was on the qualifying date resident at the address shown, is any evidence at all for any other purpose. But if the entry in the register was evidence, the learned judge was not in our judgment bound to accept that it was sufficient evidence of breach of covenant by Miss Griffiths. Not only was no notice to admit served on Miss Griffiths but no explanation was given of the failure to produce a relevant Form A and then to prove the contents and signature of Form A. The learned judge accepted that the letter dated September 18 1980 was written in good faith but said ‘It is not enough, on the balance of probabilities, to show that Mr Murray Cooper was actually resident on the premises. . .’. We agree. There are too many imponderables. Form A may not have been completed; if it was completed the identity of the person who completed it is not known, and there is no evidence that any form was completed to the knowledge of Miss Griffiths. Form A may have been completed under a misapprehension as to the facts or as to the requirements to be satisfied for entry on the form. Moreover, the categories of persons who are entitled to be registered are defined so widely by the Act that it is impossible, in the absence of evidence, to be certain that any inference to be drawn from the register of electors that a Mr Murray Cooper was present at the flat constituted presence of a nature and quality which created a breach of the tenant’s covenants. Accordingly, the landlords’ contentions fail and this appeal must be dismissed. The appeal was dismissed with costs.