Possession — Tenants leaving premises — Landlord changing locks — Tenants attempting to return — Injunction granted to tenants ex parte — Premises let to third party — Recorder refusing to continue injunction — Whether injunction should have been continued — Appeal by tenants allowed in part
The plaintiffs became the tenants of the defendant landlord. They fell into arrears with their rent in November 1989 and the defendant gave notice to quit expiring on January 5 1990. By mid-December 1989 the plaintiffs were not in the premises and had not paid the arrears. In January 1990 the plaintiffs returned and twice attempted to re-enter the premises; the defendant had changed the locks and removed the plaintiffs’ belongings. On January 12 the defendant let the premises to a third party.
The plaintiffs obtained, ex parte, an injunction letting them back into possession; by a decision of Assistant Recorder Trethowan (February 9 1990) this injunction was not continued by reason of the difficulty the defendant had in obtaining possession against the third party. The plaintiffs appealed.
Held The appeal was allowed in part and a declaration granted that the plaintiffs were entitled to occupy the premises pending trial.
There was a serious issue to be tried and damages were not a sufficient remedy. The plaintiffs had an assured tenancy which could only be determined by a court order or an unequivocal giving up of possession which there had not been in this case. An injunction could not be granted because of the tenant now in occupation. The change of the locks showed that the defendant feared the plaintiffs might return.
American Cyanamid Co v Ethicon Ltd [1975] AC 396 considered.
Dr Paul McCormick (instructed by Anderton & Co, of Portsmouth) appeared for the appellants; and Martin Rodger (instructed by Cousins Burbidge & Connor, of Portsmouth) appeared for the respondent.
