R v Rent Officer for Kensington and Chelsea, ex parte Noel

Fair rent–Motion for order of certiorari to quash rent officer’s registration–Rent officer’s jurisdiction challenged before hearing–Issue as to whether there was a tenancy or a licence–Rent officer’s discretion to decide jurisdiction–Decision, however, based on submissions by parties’ solicitors, not on evidence–Application for certiorari granted accordingly to quash rent officer’s determination In these proceedings Mrs Victoria Mary Noel moved for an order of certiorari to quash a decision of the rent officer of the London Borough of Kensington and Chelsea on January 16 1975 whereby he determined a fair rent for a three-room ground-floor flat at 34a Addison Gardens, London W14, at £70 per month exclusive of rates. She claimed that the rent officer had no jurisdiction because at the material time the person upon whose application the rent officer purported to act was not a tenant but a licensee. Patrick Medd QC and Norman Banks (instructed by Arnold Fooks Chadwick & Co) appeared for the applicant; Harry Woolf (instructed by the Treasury Solicitor) represented the rent officer. Giving the first judgment, SLYNN J said that in November 1974 Miss Hilary Lowday applied to the rent officer for the registration of a fair rent of the premises in Addison Gardens occupied by her under the terms of an agreement made with the then owner, Arthur Younghusband. The rent officer notified Mr Younghusband of the application and on December 5 1974 solicitors acting for him wrote taking two points, only one of which was material, namely that from the terms of the document ‘misdescribed’ as a tenancy agreement it appeared Miss Lowday was merely a licensee of the premises. That being the case, claimed Mr Younghusband’s solicitors, there was no protected tenancy and the rent officer had no jurisdiction. They also stated that a High Court writ was to be taken out in the Chancery Division claiming a declaration that Miss Lowday did not have a tenancy or any other right or interest in the premises. On January 6 1975 the rent officer prepared a memorandum in which he set out what appeared to him to be the questions to be resolved. In that memorandum he described the agreement as an ‘artificial cloak’ and went on to state that he was of the opinion that a tenancy had been created in favour of Miss Lowday. He then communicated with the parties and informed them he would discuss the matter with them on January 16. On that day solicitors for the owner and Miss Lowday attended and made submissions. At the proceedings solicitors acting for the owner served Miss Lowday with a High Court writ. The rent officer, after hearing the submissions, decided he had jurisdiction and he then went on to decide on the evidence before him that there was a tenancy and then purported to fix a fair rent. Some time after the meeting before the rent officer Miss Lowday moved from London and the Chancery proceedings were abandoned. The property eventually changed hands and the present applicant now sought to quash the determination of the fair rent. Proceedings before a rent assessment committee had been adjourned pending the outcome of the present application to the court. It was against that background that Mr Medd now contended that the rent officer knew from an early stage that his jurisdiction was disputed. Accordingly, claimed Mr Medd, he should not have proceeded to determine a fair rent but should have adjourned so that a decision on the question whether a tenancy existed could be reached in the Chancery Division proceedings. Alternatively, if the rent officer had jurisdiction he had not acted in a judicial manner in that he had prejudged the issue; did not appreciate the difference between tenancy and licence; and should have dealt with the matter by hearing evidence as a judge would have done at a trial. Mr Medd was not contending that the respondent did not have the power to decide on jurisdiction. He was right not to go so far. A rent officer was entitled, and might be bound, to decide in the first instance whether he had jurisdiction if the question arose. If the matter was such that he considered it more appropriate for a court to determine, he was entitled to invite the parties to take the issue to the county court. If he determined the question of jurisdiction himself the High Court could review his decision. Section 105 of the Rent Act 1968 did not automatically require that any question of whether a tenancy was protected or not had to be referred to the county court. In a number53 of cases reference had been made to section 105 and this court had been told that it was apparently considered that, because of one case in particular, if an issue on jurisdiction arose the matter had to go to the county court. The court had been referred to the case of R v Brent London Borough Rent Officer, ex parte Ganatra [1976] 1 QB 576, but that case was not to be construed as saying that when there was a question falling to be decided under section 105 of the Act the rent officer must leave the issue to be decided by the county court. In the case of R v Croydon and South West London Rent Tribunal, ex parte Ryzewska [1977] 1 All ER 312 at p 314 Caulfield J said ‘the rent tribunal proceeded strictly according to the principles which should be observed by a tribunal in a situation such as this . . . to listen to the contentions of the parties and make up their own minds there and then whether it is better for them to proceed with the determination having first of all decided the preliminary point of jurisdiction.’  Rent officers could also gain assistance from R v Fulham, Hammersmith and Kensington Rent Tribunal ex parte Zerek [1951] 2 KB 1. The basis of all these authorities was that a rent officer had a right to consider jurisdictional facts and that if he goes on to do so his decision will stand subject to an application to this court. In the present case the rent officer was entitled to conclude on the material before him that it was proper for him to decide that he had jurisdiction to determine whether there was a tenancy at all. The court could not interfere with his decision simply because he had decided to go ahead and hear the application, but the court had authority to supervise the way in which a rent officer arrived at a decision and the way in which he conducted the proceedings. He (his Lordship) would not assume from the memorandum prepared by the rent officer in January 1965 that he had prejudged the issue before the meeting on January 16. Nor did what he wrote in the memorandum show he had failed to understand the distinction between a tenancy and a licence. On the other hand, when one considered what happened at the meeting on January 16 the position at the end of the day was not satisfactory. It was impossible to resolve an issue of the kind raised in the case merely on the basis of submissions and arguments put before a rent officer by the solicitors for the parties. The allegation was that the document relied upon by Miss Lowday as a tenancy agreement was a ‘sham’ or ‘cloak’ and a device to avoid the effects of the Rent Acts. That was a matter which could only be properly dealt with by the hearing of oral evidence and, if necessary, by cross-examination. The rent officer was not, because of the procedure adopted, in a position to come to a determination on the issue of whether there was a tenancy in the way that he did. Accordingly the court should interfere and quash the decision. EVELEIGH J agreed. LORD WIDGERY CJ, also agreeing, said that the county court was the appropriate court to decide these matters when the rent officer found them too difficult or was ordered to take them to court. Nowadays with universal legal aid there was a tendency to bring matters to the High Court which were really more appropriate to the county court under section 105 of the Rent Act 1968. The court might have to take a stricter view about granting prerogative orders if there were too many applications which were really appropriate to the county court. The application for certiorari was allowed with costs.