Minchburn Ltd v Fernandez

Rent Act 1977 — Appeal by tenant against possession order granted by county court judge to landlord — Possession sought by landlord under section 98(1)(a) on the ground of the provision of suitable alternative accommodation — Tenant’s main objection to the accommodation offered was that it was noisier than her present room — County court judge in giving judgment for the landlords did not refer to the issue of the reasonableness of making an order and he said in his judgment that the only matter which he had to decide was whether the alternative accommodation was unsuitable because of noise — Held that, although in the ordinary case the Court of Appeal would readily presume that the judge had taken all relevant matters, including reasonableness, into account, it would be unsafe to make such a presumption in this case — Apart from the statement that the only matter for decision was suitability, there was no indication in the judgment that the judge had directed his mind to the issue of reasonableness — For example, there was no mention of the length of time during which the tenant had lived in the premises, although not always in the same room, or to the effect which a move might have on her personal situation — The case would have to go back to the same judge to give further consideration to the issue of reasonableness — Appeal allowed The following cases are referred to in this report. Norman v King [1946] 1 All ER 339 Peachey Property Corporation Ltd v Robinson [1967] 2 QB 543; [1966] 2 WLR 1386; [1966] 2 All ER 981, CA R v Bloomsbury and Marylebone County Court, ex parte Blackburne [1985] 2 EGLR 157; (1985) 275 EG 1273, CA Shrimpton v Rabbits (1924) 131 LT 478 Wint v Monk (1981) 259 EG 45, [1981] 2 EGLR 83, CA This was an appeal by the defendant, Miss Restituta Fernandez, from the decision of Judge Balstone at Bloomsbury County Court granting to her landlords, plaintiffs in the action and present respondents, Minchburn Ltd, possession of Room 9 at 10 Howley Place, London W2. John Parker (instructed by William Heath & Co) appeared on behalf of the appellant; I S Partridge (instructed by Kyriakides & Braier) represented the respondents. Giving judgment, SLADE LJ said: This is an appeal by Miss Restituta Fernandez, the defendant in an action, from an order of His Honour Judge Balstone, made at the trial of the action in the Bloomsbury County Court on November 4 1985. By his order he adjudged that the plaintiff, Minchburn Ltd, should recover against the defendant possession of certain premises in London, the premises in question being known as Room 9, 10 Howley Place, W2. As I understand it, the premises are on the first floor of the building, 10 Howley Place. The plaintiff is the owner of the freehold. The defendant, who works as a chambermaid at Claridge’s Hotel, was the tenant of the room, her tenancy being a statutory tenancy protected by the Rent Act 1977. Section 98(1) of that Act provides as follows: Subject to this Part of this Act, a court shall not make an order for possession of a dwelling-house which is for the time being let on a protected tenancy or subject to a statutory tenancy unless the court considers it reasonable to make such an order and either — (a) the court is satisfied that suitable alternative accommodation is available for the tenant or will be available for him when the order in question takes effect, or (b) the circumstances are as specified in any of the Cases in Part I of Schedule 15 of this Act. The plaintiff, in or about February 1985, instituted proceedings|page:104| against the defendant seeking possession of the premises on ground (a). It asserted in its particulars of claim that suitable alternative accommodation was available for her and gave particulars of two sets of premises. A defence was filed, in which it was denied that suitable alternative accommodation was available for the defendant. It was further averred that it would not be reasonable to make the possession order sought by the plaintiff. At the trial the learned judge heard evidence from Mr Markovic, a director of the plaintiff, and from the defendant herself. Mr Markovic told him that the plaintiff is the freeholder of 8 and 10 Howley Place. Having first acquired the leasehold of both properties, it then acquired the freehold. After that, he told the learned judge, it made a policy decision. It considered that there were too many people in the property, which was not in a good condition, and it decided to do something about it. It put on a new roof, new gutters and windows and installed a new hot-water system. It obtained planning permission to convert the ground floor and first floor into self-contained flats. It did some other work as well. While there were three tenants in the basement of no 8, only the defendant and a housekeeper were in occupation of no 10. The plaintiff having originally offered the defendant certain other properties, finally offered her accommodation at 17 Westbourne Court, Bayswater, nearby to the place where she is now living. Mr Markovic, in his evidence in chief, accepted that Westbourne Terrace was busier than the defendant’s present flat, but said that secondary double-glazing had been, or would be, installed to reduce the noise. In cross-examination he accepted that the defendant’s present room has a pleasant outlook and that the road is a residential road, though at some times of day it gets busy. He pointed out that Westbourne Court and Howley Place are approximately the same distance from Claridge’s. The defendant in her evidence — I am referring throughout to the learned judge’s notes of the evidence given to him — said that she had lived at Howley Place for 24 years, for some six to seven years on the ground floor; that she had moved to Room 9 in 1969. She told the learned judge that she did not want to move to the new accommodation proposed because, she said, it was very noisy in contrast to her present room, where she could open windows without suffering inconvenience from noise. She said that she did not like the new accommodation offered. That, I think, was the principal effect of her evidence so far as we can gather it from the learned judge’s notes. As the wording of section 98(1) of the Act makes clear, the mere fact that the court is satisfied that suitable alternative accommodation is available for the defendant does not by itself empower the court to make an order for possession; the court also has to be satisfied that it is reasonable to make such an order. The need for it to be so satisfied has recently been reasserted by this court by its decision in R v Bloomsbury and Marylebone County Court, ex parte Blackburne (1985) 275 EG 1273*. In these circumstances, having regard to this requirement, I think, with all respect to the learned judge, that he expressed himself in a rather unfortunate way in delivering his judgment. It was a very short judgment and I propose to quote it almost in full: This is an action by Minchburn Ltd, owners of Room 9 for possession by Miss Fernandez on the grounds that they have been able to or can provide suitable alternative accommodation. An action has already been before the court and a possession order has been refused. The grounds of that refusal are not applicable in this case because the plaintiffs offer different accommodation. I must decide this independently and on its own merits. The matters upon which I have to make a decision relate only to suitability of the accommodation offered by the plaintiffs. 1. Does the character of the property offered in Orsett Terrace meet the needs of the defendant? I find as a fact that the property offered is at least as good as that she occupies. 2. It will be as convenient for reaching her work. She walks every day and the distance to her place of work from one property . . . to the other is almost exactly the same and this is not in dispute. The only matter is whether the property offered is not suitable accommodation because it is more noisy. It backs on to Westbourne Terrace and is close to a flyover. I have had an opportunity to visit both properties. I find that Howley Place is comparatively quiet. I have seen the double glazing in the Orsett Terrace property to try and reduce the noise. The defendant says she likes fresh air. I am asked by the plaintiffs to say that it is a matter of degree. Does the degree of noise make it unreasonable for her to occupy the Orsett Terrace property? I have visited the Orsett Terrace property and tried to use common sense. There is a modest degree of noise to be tolerated. However one can acclimatise oneself. I find as a fact that the noise at Orsett Terrace is not so much as to be excessive. I therefore make an order for possession some discussion was made as to when the order should come into effect in two months. *Editor’s note: See also [1985] 2 EGLR 157. And then the learned judge proceeded to deal with the question of costs. The grounds of appeal, as set out in the defendant’s notice of appeal, and as pursued by Mr Parker on her behalf in an admirably succinct argument, are as follows: That the learned trial judge failed to consider at all as he was required by section 98(1) of the Rent Act 1977 whether it was reasonable to make an order for possession; alternatively the learned trial judge misdirected himself in considering that the matters upon which he had to make a decision related only to the suitability of the accommodation offered by the plaintiff. Mr Partridge, on behalf of the plaintiff/respondent in an equally able argument, has reminded us of the decision of this court in Norman v King [1946] 1 All ER 339, in which the court reaffirmed the general principle that, on an appeal from a decision of a county court judge on the ground of misdirection, it is for the appellant to satisfy the court that the judge did in fact misdirect himself, and that if the court is left in any doubt it should adopt a benevolent construction of the judge’s language so as to support his judgment. The question in that case was whether an arbitrator had misdirected himself on a question relating to the Workmen’s Compensation Act, and Lord Greene MR at p 340 said this: The question, therefore, boils down to this. Did the arbitrator, or did he not, misdirect himself? It is for the appellant to satisfy us that he did misdirect himself. If we are left in doubt as to that, in my opinion his reasons must be construed in a favourable way so as to support his judgment. This court is not entitled, in my view, to scrutinize the type of concise note that we have in this case with very critical care; it must be satisfied that there was a misdirection. If the matter is left in doubt, the court should construe the judge’s language in a benevolent way so as to support his judgment. Though neither of the counsel who have appeared before us appeared in the court below, Mr Partridge has told us, on instructions, that in the court below the question of reasonableness had not only been pleaded by the defendant; it was expressly dealt with to some extent in the plaintiff’s evidence and in the argument presented on behalf of the plaintiff. In contrast, he told us on instructions, it was apparently raised as a separate point in the argument presented on behalf of the defendant. He submits that in all the circumstances it is really inconceivable that the learned judge should have failed to direct his mind to the question of reasonableness, which must have been present to his mind when he gave his judgment, even if he did not expressly refer to it. For my part, I would readily accept that, in the ordinary case, where a county court judge is dealing with an application for possession under section 98 of the 1977 Act, this court would be prepared readily to presume that he had taken all relevant matters into account (including reasonableness), unless there were very good reasons for making some other, contrary, inference. The difficulty in the present case is that this learned judge, in the course of his extempore judgment, said quite specifically: The matters upon which I have to make a decision relate only to suitability of the accommodation offered by the plaintiffs. Then, a little later, he said: The only matter is whether the property offered is not suitable accommodation because it is more noisy. A little later still in his judgment, it is true, he asked himself the question: Does the degree of noise make it unreasonable for her to occupy the Orsett Terrace property? But I read this introduction of the concept of reasonableness simply as related solely to the suitability of the alternative accommodation. In the light of this expression of what he regarded as the solely relevant factor, with some regret, I do not think it safe for this court to presume that the learned judge had the statutory requirement of reasonableness in his mind. Undoubtedly, cases may occur in which the essential element of reasonableness has been overlooked by the court below, and this case, as I read the learned judge’s judgment, may possibly have been such a case. If he had specifically directed his mind to the question of reasonableness, I would have expected him to add some reference in his judgment — albeit perhaps a very brief|page:105| reference — to the other factors which had been ventilated in the evidence and which would appear to have been relevant in relation to the context of reasonableness. Simply by way of example, but of course not intending to give an exhaustive list, I would mention the great length of time for which the defendant had been living in these premises; the effect which a move might have on her personal situation; and, on the other side of the scale, the landlords’ reasons for desiring to obtain possession of the property. The mere fact that the issue of reasonableness does not appear to have been specifically and separately canvassed on her behalf before the learned judge did not absolve him, and does not prevent this court, from considering it; indeed, I think he was, and we are bound, to consider it, since it goes to jurisdiction: see Shrimpton v Rabbits (1924) 131 LT 478. Mr Partridge invited us to say that, even if we were not satisfied that the learned judge had sufficiently directed his mind to the question of reasonableness, nevertheless we have the material before us to determine this issue ourselves and we should determine it in favour of the plaintiff/respondent. I do not think that we have the material or that this would be a proper course. This issue is one for the court below. In all the circumstances, albeit with some regret, I for my part think we should allow this appeal and that we should remit the matter to the same learned judge, His Honour Judge Balstone, for further consideration on the issue of reasonableness, giving both parties liberty to adduce further evidence on this point if so advised. Agreeing, EASTHAM J said: At p 1769 of the current County Court Practice the law, in my judgment, is adequately set out where, in dealing with reasonableness, the Practice reads: The court must still consider this requirement of reasonableness. . . A failure to consider this requirement and the other requirements of this section will make any judgment a nullity, and the authority for that is Peachey Property Corporation Ltd v Robinson [1967] 2 QB 543. As my lord, Slade LJ, has pointed out, in normal circumstances the Court of Appeal would presume that an experienced judge had taken all relevant matters into account; in addition to the case cited, the Practice says that that presumption was approved by a court in 1947 and twice in 1971. Therefore, for the reasons given by my lord on the first point, where the learned judge made it plain that the only matter on which he had to give a decision related to suitability, I find it impossible to apply the presumption. In this connection I would refer to Wint v Monk (1981) 259 EG 45, [1981] 2 EGLR 83, where the Court of Appeal directed that the whole action with its two issues — reasonable alternative accommodation and reasonableness — should be reheard in the county court but by another judge. The second ground put forward by Mr Partridge, namely that if we thought that the learned judge had failed to take reasonableness into account we should do so, does not in my judgment find favour, not only for the ground mentioned by my lord, Slade LJ, but essentially because the question of reasonableness was left to the county court judge in the first instance and the decision should be made by him and not replaced by a decision of this court. For those reasons I agree with my lord that this appeal should be allowed to the extent that the case should go back to the same county court judge for further consideration on the question of reasonableness, and that both parties should be at liberty to call further evidence, if they so desire, on that issue. It does not seem to me to be necessary in this case to direct a rehearing of the whole action before a different judge as was done in Wint v Monk (supra). The appeal was allowed with costs in the Court of Appeal; costs below to be reconsidered by the county court judge at the same time as the issue of reasonableness.