Claims by tenants’ association against landlords for specific performance and damages in respect of alleged failure to carry out repairing obligations end in ‘almost impossible muddle’–Errors in procedure–Originating application in county court by unincorporated body with no legal right of action–Whether defects could be cured by amendments under County Court Rules–Proceedings struck out by registrar as disclosing no reasonable cause of action but order set aside by county court judge who gave leave to substitute one named tenant as applicant instead of association–Appeal from judge’s order allowed by Court of Appeal–Substitution of one tenant as applicant would only add to muddle–Claim for specific performance having been abandoned, the amounts of damages which might be awarded to different tenants would be likely to be different–The named applicant could only pursue a claim in respect of his own circumstances–‘The applicant or applicants, whoever they may be, should start again’
This was an
appeal by Clyftville Properties Ltd from an order of Judge Ranking at Bow
County Court reversing an order of the registrar who had struck out an
application by the Hermitage Court Owners’ Association under Order 13, Rule 6
of the County Court Rules as disclosing no reasonable cause of action. The
judge gave leave to amend the application by the substitution of the name of
William Wolfe Kenton, one of the tenants belonging to the association, as
applicant. The judge also gave leave to add a claim for damages to the original
claim for specific performance. The property to which the proceedings related
was Hermitage Court, Woodford Road, E18, in the London Borough of Redbridge.
Robert Pryor
(instructed by Tobin & Co) appeared on behalf of the appellant landlords;
Barrie Nathan (instructed by Huggins & Co, of Ilford, Essex) represented
the respondent association.
Giving
judgment, EVELEIGH LJ said: On July 11 1978 an originating application was
taken out in the Bow County Court in the name of The Hermitage Court Owners’
Association. The respondents were named as Clyftville Properties Ltd. By that
application it appeared that the applicants were asking for specific
performance against the respondent company, ‘that it may perform such obligations
incumbent upon it pursuant to clause 3 of the underleases granted to the
members of the said association whereby the respondents are to repair and keep
in good repair: (a) the block of flats externally; (b) the interior hallways
thereof; (c) the garages; (d) the footpaths, roadways and such other common
parts.’ The application asked for such
further or other relief as the court deemed just; and for costs. In the
affidavit filed in support thereof it was claimed that the landlords had long
been in breach of clause 3 of the underlease referred to. It would appear that
a very large number–exceeding 60 per cent but precisely how many the court did
not know–of the tenants of Hermitage Court formed a tenants’ association; and
we are told that the committee of that association resolved to launch these
proceedings.
The
respondents applied to the registrar of the county court for an order that the
action be struck out on the ground that it was misconceived and, further or in
the alternative, that it be struck out on the ground that the applicants had no
locus standi and, therefore, that the court had no jurisdiction to
entertain the proceedings.
The matter was
argued before the registrar. The respondents’ contention was that the Hermitage
Court Owners’ Association was not a legal person, that it had no power to bring
an action, that therefore the proceedings were a nullity and that the court
could not be seised of them.
The
applicants, however, argued before the registrar that they should be allowed to
amend the proceedings. That application was in effect notified to the
respondents and brought before the court by an affidavit sworn by the chairman
of the association. He himself was not a tenant: he was the son of one of the
tenants. In paragraph 7 of his affidavit we read:
In the event
of this Honourable Court being unable to accept my humble submissions above
then I would further claim that by virtue of Order 15, Rule 1 of the County
Court Rules this Honourable Court has power to amend any defects and errors in
these proceedings and further has power to substitute any person as plaintiff
for the purpose of determining the real question in controversy between the
parties in order that those proceedings shall continue in all respects in the
form in which they would appear after the amendment had been made. It is
therefore in the discretion of this Honourable Court to appoint any tenant who
holds a lease in respect of a flat at Hermitage Court as the applicant in this
action in substitution to the present applicant.
It would
appear on the face of it that what was being asked was that one tenant should
be substituted to pursue the claim as set out in the application, namely, a
claim for specific performance. At some time during the history of these
proceedings (it is not immediately clear whether that was before the registrar
or before the learned judge to whom an appeal was subsequently made) the
application to substitute a single tenant was more specific, and the name of
William Wolfe Kenton was put forward. At the same time, application was made
for an alternative claim for damages for breach of covenant to be included in
the application. Whether the application for an amendment in those two respects
was before the registrar, I know not, and it does not matter. The registrar
refused the application and ordered that the proceedings be struck out under
Order 13, Rule 6 of the County Court Rules.
The applicants
appealed to the county court judge. In delivering his judgment the county court
judge dealt in the first instance with the question as to whether or not he had
jurisdiction to grant an amendment by substituting Mr Kenton as plaintiff and
by allowing the additional claim for damages. It is clear that the argument
before him centred very much around the submission by the respondents that the
association was not a person or body capable of being named as a plaintiff in a
writ or plaint and that therefore the proceedings were a nullity and the
learned judge had no jurisdiction: for it was
being a nullity, it does not exist. The learned judge, however, referred to
Order 5, Rule 6 and to Order 15 of the County Court Rules and held that those
provisions gave him jurisdiction. He concluded by saying: ‘I have got to decide
whether the applicants should be allowed to amend, and one should bear in mind
that the court should not allow time to be wasted by technicalities. I think I
have jurisdiction and I exercise my discretion.’ He then went on to say: ‘I must be quite
clear precisely what amendments are sought.’
He made an order in the following terms:
It is Ordered
that the appeal be allowed, and that the Registrar’s Order dated the 1st day of
November 1978 be, and hereby is, set aside. And it is Ordered that there be
leave to amend to substitute for the present Applicant the name of William
Wolfe Kenton and to amend consequentially the application itself and to pray
for damages.
He made an
order as to costs, which this court may have to consider in a moment after
hearing counsel upon that. Then the order concludes:
And the
Applicants’ solicitors undertake to file an amended application within seven
days and consent in writing of William Wolfe Kenton to the amendment together
with an affidavit by him in support of the application.
That affidavit
was filed, and the application was amended by substituting the name of William
Wolfe Kenton as applicant and by adding one sentence to the prayer for relief:
‘Damages limited to £2,000.’
The
respondents to that application appeal to this court. Mr Pryor has argued (as
was argued in the court below by his predecessor) that there was no
jurisdiction here. He referred the court to a number of cases. In the course of
argument a number of factors emerged which put a different light on the proper
approach to the problem which faces this court. The court was informed that one
reason for the need for a claim for damages as opposed to that for specific
performance was that at some time after the commencement of the proceedings the
landlords had assigned their reversion and were no longer in a position to be
made the subject of an order for specific performance. No allegation has been
made as to the motive of the landlords in that assignment, and this court would
not seek to comment upon it in any way. It is merely a fact that the reversion
has been assigned.
In that
situation and on those facts I turn to consider the two orders upon which
reliance has been placed in this court by the respondents to this appeal. Order
5, Rule 6 of the County Court Rules reads as follows: ‘No action or matter
shall be defeated by reason of the misjoinder or non-joinder of parties, and
the court may in every action or matter deal with the question in controversy
so far as regards the rights and interests of the parties actually before
it.’ I think I can dispose of that order
quite quickly by saying that it is not suggested here that there was a party
with whom some other party had been wrongly joined, or that there was a party
with whom another party should have been joined. In other words, this
application to amend is not based on misjoinder or non-joinder.
I then turn to
consider Order 15, Rule 1. That order reads as follows:
The court may
at any time (a) amend any defects and errors in any proceedings whether the
defect or error is that of the party applying to amend or not; and (b) add,
strike out or substitute any person either as plaintiff or defendant; and all
such amendments as may be necessary for the purpose of determining the real
question in controversy between the parties shall be made, if duly applied for.
. . .
Now, what is
the situation that has emerged in this case?
The claim for specific performance is in fact not being pursued. We are
told that it was not struck out on the amended application. It is quite clear
from what the court has been told by counsel for the applicants that he accepts
the position that he cannot in reality pursue that claim. So this is a claim
for damages.
As originally
conceived, it would appear that a number of tenants had grouped together to
bring a claim for specific performance. That was a claim that they could have
made with the name of each such tenant appearing as a plaintiff in an action. I
will not in this judgment deal specifically with the question whether or not an
originating application was the proper procedure in this case. But the claim,
as I say, could have been made by naming the tenants as plaintiffs in an
action. If it is permissible in this case to say that that in effect was being
done, namely, making them all plaintiffs, but by a wrong description, namely
the name of the association, for myself, were there no other problems in the
case, I would allow an amendment to put in the names of those tenants. It may
be that it would be a permissible course to allow one tenant to be named as a
representative, in order to constitute a representative action on behalf of all
the tenants. I need express no concluded opinion upon that matter, because
counsel for the association does not apply for that, and, if I may say so, he
rightly does not. A claim for specific performance he no longer wishes to
pursue. He wishes to pursue a claim for damages. If the case is made out, the
claim for damages in respect of the various tenants of this block of flats will
be very different in so far as the loss and damage is concerned. Counsel has
told the court that the intention is to claim damages because the premises have
been out of repair for something like the last eight years. The damages that
might be awarded to the tenant on the top floor would be very different, as I
see it, from the damages to the tenant on the ground floor. It is difficult to
see how the tenant on the ground floor could be affected by failure to carry
out repairs to the common part on the top floor. Other instances could be found
to show that the measure of damage would be different in the case of virtually
every tenant, for a great number of reasons. Therefore one asks oneself, what
is it that is sought to be done in this case?
It is sought, as I see it, not to sustain the original claim, but to
substitute an individual claim for damages by one tenant–a claim which from its
very nature is a claim made for himself and not on behalf of the others. It may
be that in his claim an issue decided in his favour will strongly influence the
respondent or defendant landlord in his attitude to the other tenants. But the
matters to be decided will be different. The amount of damages to be decided
upon will be different, and the decision will in no way bind the other tenants.
The case, in
my view, has got into an almost impossible muddle. One starts off with the
wrong name. One finishes up with a single name, claiming for himself and
claiming relief that was not the relief originally asked for. In the case of London
Association for the Protection of Trade v Greenlands Ltd [1916] 2 AC
15 Lord Buckmaster said (p 20): ‘My Lords, this case affords the unedifying
spectacle of litigation conducted with such disregard of the rules of procedure
that extrication from the resulting tangle has been all but hopeless.’ I fear that to allow the amendment that is
asked for in this case would only add to the muddle that already exists, and
would make the words of Lord Buckmaster wholly appropriate to the resulting
situation, even if they are not already so. In my view it is not right to allow
this amendment. The applicant, or applicants, whoever they may be, should start
again.
I therefore
would allow this appeal.
Agreeing,
BRANDON LJ said: I would not allow this appeal on the ground that the
proceedings as originally constituted were a nullity. It seems to me that the
association in whose name the proceedings were originally brought exists,
although it does not have the right to sue or to be sued. It seems to me that
the authorities that were cited to us relating to proceedings brought on behalf
of a deceased plaintiff, in the one case, or a dissolved company, in the other
case, do not apply. This case is distinguishable. The plaintiff exists,
although it does not have the right to sue in its own name. In principle,
therefore, I would agree with the provisional view expressed by my
Lord–that there was jurisdiction to amend the proceedings, if it were right to
exercise it. But on the question whether it was right to exercise it or not, I
would agree again with my Lord that, for the reasons he has given, to allow the
amendment as proposed would be a wrong exercise of discretion. He has indicated
the various difficulties and complications which arise. It seems to me that the
only sensible solution to all these difficulties is for the slate to be wiped
clean and for those who believe they have causes of action against the
respondents to prosecute them by properly constituted proceedings in a proper
form in accordance with the rules of proceedure prescribed. Otherwise there
will be a tangle that it will be impossible to get out of.
For these
reasons, I also would allow the appeal.
An order for
costs was made against the Hermitage Court Owners’ Association and against
William Wolfe Kenton, the order to include costs before the registrar and the
county court judge as well as before the Court of Appeal.
