Protected tenancy–Whether tenant in residence at expiry of contractual term–Burden of proof–If hearsay evidence disregarded, as it should have been, testimony perfectly consistent with tenant’s having been away on holiday–Order for possession discharged–Observations on admission of hearsay evidence under Civil Evidence Act
This was an
appeal by Mrs Elizabeth Cravitz from decisions of Judge McIntyre at West London
County Court on October 23 1973 and January 16 1974 respectively, awarding the
respondents, Roland House Gardens Ltd, an order for possession of a single-room
flat at Roland House, Roland Gardens, London SW7, and rejecting the appellant’s
subsequent application for a new trial.
Mr N Primost
(instructed by M S Sheridan) appeared for the appellant, and Mr J Dyson
(instructed by A E Hamlin & Co) represented the respondents.
Giving
judgment, CAIRNS LJ said: We have before us appeals from two decisions of Judge
McIntyre given at the West London County Court. There has been long-drawn-out
litigation concerned with a one-room flat at 78 Roland House, Roland Gardens,
London SW7. The defendant is a lady who lived in the flat for some 18 years up
to 1972. In 1965 she was granted a lease for seven years from midsummer 1965 by
the plaintiffs’ predecessors in title. On August 13 1969 the plaintiffs bought
the freehold. On June 24 1972 the seven years’ lease expired. On July 6 1972
the plaintiffs started an action for possession in the county court on the
basis that the lease had expired and that the defendant was not a statutory
tenant because she was no longer residing there. On September 19 1972 an order
for possession was made in favour of the plaintiffs in the absence of the
defendant by Judge Baxter. On August 24 1972 a defence was delivered on behalf
of the defendant claiming the protection of the Rent Acts. On November 7 1972
an application came before Judge Macdonell to set aside the order for
possession under the provisions of order 37, rule 2 of the County Court Rules,
and the judgment was set aside. There was a long delay before the matter came
before the court again for hearing, and that has been unexplained. It was not
until October 23 1973 that the case came before Judge McIntyre.
Evidence was
called for the plaintiffs with a view to proving that the defendant had gone
out of residence. The defen-
witness would be the defendant’s daughter, who was not present in court on that
day, and the judge granted an adjournment with a view to the daughter being
called if the defendant desired to call her. Apparently thereafter the
plaintiffs thought that it might be to their advantage to have the daughter
there, and accordingly they endeavoured to serve a subpoena on her. But they
were not able to do so, and they very properly wrote to the defendant on
November 16 1973 asking for her co-operation in getting the daughter there. But
when the hearing was resumed on December 4 1973 the daughter was not present,
and the judge thereupon made the order for possession. On January 16 1974 the
defendant applied for a new trial to Judge McIntyre, but that was refused. On
February 25 1974 she made an application for a stay of execution, but that was
refused. The order was executed and the plaintiffs took possession. I ought to
have observed that at the hearings in October and December the defendant was
present, but she was not represented by solicitor or counsel. The next stage
was that on March 11 1974 the defendant applied to the Court of Appeal for
leave to appeal against the possession order, and also for leave to appeal
against the refusal of her application to have that order set aside. She needed
leave because she was out of time for both appeals; and it may be that the
order refusing a new trial was an interlocutory order, and that accordingly she
needed leave to appeal, quite apart from the time element, in relation to that.
However that may be, she was given leave to appeal against both orders. On April
24 1974 notice of appeal against each of those orders was served. On November
12 1974 notice of motion was served by the defendant, who was then represented
by solicitors and counsel, for the admission of fresh evidence on the hearing
of the appeal.
It is
convenient at this stage to look at the evidence which was given in the county
court. The first evidence for the plaintiffs was that of an inquiry agent, Mr
Bond, who said that he visited the premises on May 13 1972 and he saw a young
girl there. He asked for the defendant, and the door was closed on him. A
little later, he said, he saw an elderly woman, and he then went away. Then
there was another inquiry agent called, who said that he visited the premises
on several days in September 1972. He got no reply to his knocking at the door,
but he saw that there was a young lady on the premises. Then came Mr Joory, the
plaintiffs’ property manager, who said that he had an office on the ground
floor of this block of flats, and that he knew the defendant. He said that he
never saw her there in the summer of 1972, but he saw the daughter there during
that period. He then said this: ‘I spoke to Miss Cravitz, who said that her
mother lived abroad–not sure where. Said defendant had remarried.’ Mr Joory went on to say that he first saw the
defendant there–obviously meaning first saw her after some time early in the
summer–in October 1972. He said that there had been an occasion in September
1972 when there had been a leak and somebody on behalf of the landlords had to
break in because there was nobody there. The last witness for the plaintiffs
was Mr Babella, the porter at the premises, who said that he used to see the
defendant there all the time. ‘About May 1972 this changed for four-five
months. I then used to see her daughter only. She said her mother lived abroad.
From end of 1972 I saw defendant living there.’
Then the defendant gave evidence and said that she had never allowed her
daughter to have sole possession of the flat. She did herself go away on
holiday. She was cross-examined. She would not say whether she wished to
remarry. She said that she was ‘out of possession’ for about five weeks. Mr
Dyson, on behalf of the plaintiffs, very fairly does not ask us to attach any
other meaning to those words than that she was not physically present there for
about five weeks.
The judge took
an unfavourable view of the defendant. Any oral judgment that he gave must have
been a short one, and we have not been supplied with any note of it. The judge
was asked in March of this year to supply some note of his judgment, and what
he supplied was this: ‘I have not been shown any note of my oral judgments in
this case. I preferred the evidence called for the plaintiffs to that of the
defendant. I stated that in my judgment she was a thoroughly unreliable witness
who had not hesitated to attempt to blacken the character of the plaintiffs’
witnesses unjustifiably. I adjourned the first hearing in order to enable the
defendant’s daughter, who according to the defendant could corroborate her
case, to be put before the court. When on the adjournment I was informed that
the defendant would not even supply the daughter’s address nor call her as a
witness I made the order for possession. I was quite satisfied that the
defendant had not retained possession and had no defence to the plaintiffs’
claim therefor. Since that order I feel that the defendant, who is determined
to disobey the order, has simply wasted the court’s time and the plaintiffs’
money in applications which she knows are useless.’ And the judge referred to a letter which the
defendant had written to the court on February 16.
The appeal was
presented by Mr Primost on behalf of the defendant under three headings. His
first contention was that on the evidence the plaintiffs had not established
their case. He conceded that if the defendant had ceased to be in residence for
the whole or part of the time between June 24 1972 and July 6 1972, she could
not claim the protection of the Rent Act. That that is a correct concession made
on her behalf is clear from the provisions of section 3 (1) (a) of the Rent Act
1968, which runs:
After the
termination of a protected tenancy of a dwelling-house the person who,
immediately before that termination, was the protected tenant of the dwelling-house
shall, if and so long as he occupies the dwelling-house as his residence, be
the statutory tenant of it.
There was, of
course, no issue here but that this was a protected tenancy. The whole issue
was as to whether the defendant had or had not continued to be in residence. Mr
Primost contends that the onus was on the plaintiffs to show that she had given
up residence: that residence does not require continuous physical presence on
the part of the tenant; that it is sufficient if there is an intention to
return, and particularly if furniture is left on the premises or somebody is
left in possession on behalf of the tenant. Those propositions are supported by
a series of cases which are referred to in Megarry J’s book on the Rent Acts.
It is convenient to read just a few sentences from that work. At page 184 the
learned author says:
The third
requirement is that the tenant must substantially use the premises as his
residence.
He then refers
to the earlier Rent Acts which were in force at the time when this edition of
the book, the 10th, was published, indicating that there is nothing in those
earlier Acts expressly to say that only a person in residence is protected as a
statutory tenant. That, of course, has now been changed, as I have indicated,
by the 1968 Act, which does deal with it expressly in section 3 (1) (a). But as
that is a consolidating Act, it can be taken that it was not intended to change
the law; and that that is so is emphasised by subsection (2) of section 3,
which is in an unusual form. It provides:
In paragraph
(a) of subsection (1) above and in the First Schedule to this Act, the phrase
‘if and so long as he occupies the dwelling-house as his residence’ shall be
construed as requiring the fulfilment of the same, and only the same, qualifications
(whether as to residence or otherwise) as had to be fulfilled before the
commencement of this Act to entitle a tenant, within the meaning of the
Increase of Rent and Mortgage Interest (Restrictions) Act 1920, to retain
possession, by virtue of that Act and
So clearly the
intention of the 1968 Act was simply to incorporate by express words the
meaning of the 1920 Act as it had been developed in decided cases. It is clear
from those decided cases that the temporary absence of the tenant does not
deprive him of protection. Reading again from Megarry J’s book, at page 191 it
says:
The temporary
absence of a tenant who intends to return to live in the premises within a
reasonable period will not deprive him of the protection of the Acts.
Many examples
are given from the decided cases of people absent on war service, because of
domestic difficulty, and other various reasons for being absent at a particular
time. It has been said in various of the cases that for continuation of
residence there has to be both a corpus possessionis and an animus
possidendi, and I read from page 193 of Megarry J’s book:
By corpus
possessionis is meant ‘some visible state of affairs in which the animus
possidendi finds expression.’ This
may consist of the occupation of the premises by some licensee, whether a
relation or not . . . .
Well, says Mr
Primost, the circumstances here were such that the defendant, who lived there
for a long time, had gone away, apparently, for a comparatively short time; her
daughter was left there, and the right inference is that the defendant intended
to return to reside there, and therefore that she continued to be in residence
within the meaning of the Act. I shall return later to this matter, which forms
the important ground of appeal here, but I will first refer briefly to other
matters.
As I have
said, there was an application on the part of the defendant for leave to call
fresh evidence in order to support her case that she continued in residence. It
was not contended on her behalf that the evidence would not have been available
at the time of the trial if due diligence had been used to get it, but it was
contended that the well-known principles laid down in the case of Ladd v
Marshall [1954] 1 WLR 1489 were not inflexible, and that some allowance
should be made for the fact that this was an unrepresented litigant, in a state
of some nervousness and confusion, so that in those circumstances the fresh
evidence should be admitted. It is sufficient to say that the court was not
satisfied that the circumstances were such as to justify a departure from the normal
rule, and leave to call additional evidence was refused. Then the third point
that was raised was one based upon estoppel, because it was said that the
landlords had applied in 1973 for a new rent to be fixed, and that that
estopped them from saying that the defendant had ceased to be a tenant. No
point of this kind was taken in the court below, but reliance was placed upon
the cases of Boyer v Warbey [1953] 1 QB 234 and Francis
Jackson Developments v Stemp [1943] 2 All ER 601 as authority for
the proposition that in a Rent Act case it is open to a tenant to take a point
not raised in the court below because it is matter of the jurisdiction of the
court to make the possession order. We did not find it necessary to go further
into that question of procedure, because what was apparent here was that in
order to get any estoppel on its feet it would be necessary for further
evidence to be adduced, and, for the same reason that we refused the
application for leave to call further evidence on the other matter, we refused
leave for the defendant to proceed on that ground of appeal.
That takes us
back to the main question as to what was the position on the evidence as called
in relation to whether the defendant was continuing to reside there or not. The
first point that arises there is on which side the onus lies in the first
instance, once it is shown that the premises are rent-controlled premises, to
establish either that the tenant has gone out of residence or that he or she is
remaining in residence. Mr Dyson contends that the language of section 3 (2) of
the Act of 1968 indicates that it is for the tenant to establish all the
factors which are involved in having protection, and accordingly to establish
the fact of residence. For my part, I am inclined to doubt the correctness of
that, and particularly because of language used by Asquith LJ in delivering the
judgment of the court in the well-known case of Brown v Brash
[1948] 2 KB 247. The language is conveniently quoted in the later case referred
to before us, Tickner v Hearn [1960] 1 WLR 1406 at 1413. The
passage in question was in these words:
Absence may
be sufficiently prolonged or unintermittent to compel the inference, prima
facie, of a cesser of possession or occupation. The question is one of fact
and of degree. Assume an absence sufficiently prolonged to have this effect,
the legal result seems to me to be as follows: (1) the onus is then on the
tenant to repel the presumption that his possession has ceased; (2) in order to
repel it he must at all events establish a de facto intention on his part to
return after his absence.
What Asquith
LJ appears to be saying there is: onus in the first instance on the landlord;
onus may shift to the tenant if there is a sufficiently long absence, and then
he may be able to discharge it. In this case I do not find it necessary to come
to a definite conclusion as to where the onus originally lies, because it seems
to me that if one looks at the whole of the admitted facts they are sufficient
to throw the onus upon the landlords, even if it could be said to be originally
upon the tenant, the circumstances being these: a woman who has lived
continuously in the flat for some 18 years; she has left it for a period of a
few months during the summer; she has left her daughter in possession, a
daughter who has resided there with her for some time before the lease had come
to an end; and it is conceded that her furniture remained there. With the whole
of those circumstances, it seems to me that it must follow that at that stage it
is for the landlords to establish that she had gone out of residence.
I have
recounted the evidence that was adduced on behalf of the plaintiffs, and it
appears to me that if one leaves out of account the two pieces of hearsay
evidence which are included–namely, the evidence that the daughter said to Mr
Joory that her mother lived abroad and had remarried, and the evidence of Mr
Babella that the same lady had said to him that the mother lived abroad–there
is nothing in the remainder of the evidence which tends to show that the
defendant had gone out of residence. It is all completely consistent with her
simply having gone away on holiday. Mr Dyson is driven to rely, and rely
strongly, on those two pieces of hearsay evidence, and he seeks to get round
the ordinary hearsay rule by saying: ‘Well, this evidence could have been
admitted under the Civil Evidence Act. True, no notice under that Act was
given, but there is a discretion in the judge, without the notice having been
given, to admit the evidence at the hearing.’
All that is right: but there was no application to the judge to take the
exceptional course of admitting this evidence; and if he was minded to exercise
his discretion under the Civil Evidence Act to admit it, he would certainly
before doing so have to indicate to the defendant what her rights were in the
matter. Mr Dyson says: ‘Well, there is really nothing in that, because it is
perfectly plain that the course which the judge would have taken would have
been to say, ‘I will give you an opportunity of having your daughter here, and
if she comes I will make my decision as to whether to admit the evidence.’ And once the daughter had not come (and it
looked very much as if it were the defendant’s wish that she should not come)
the judge would then probably have exercised his discretion by saying, ‘I will
let the hearsay statements in’.’ I am
quite unable to accept that line of argument. Under the old law, of course,
hearsay statements of this kind would have been quite inconceivable as being
admitted by an experienced judge, be it in a county court or any other court;
and under
bring in hearsay evidence has taken the proper steps of serving the necessary
notice, I am of opinion that the alternative of making an application to have
the evidence admitted without those steps being taken is one which requires
very careful treatment by the judge, and certainly with an opportunity being
given to the party against whom the evidence is sought to be advanced to deal
with that application. I refuse to speculate as to what the result would have
been if those steps had been taken. That means that I exclude from my mind
altogether those two sentences in the evidence.
Finally, Mr
Dyson falls back upon the evidence which the defendant gave, and says: ‘Here
was a woman whom the judge totally disbelieved. She has given an explanation of
why she was not there which the judge has held to be a pack of lies. Therefore,
it should be held that she had really gone out of residence.’ I cannot draw that inference at all. It is
one thing to say that her evidence was of no value in rebutting the case for
the plaintiffs; it is quite another thing to say that her evidence was such as
to afford positive support to the plaintiffs’ case. The conclusion which I
reach is that the plaintiffs have failed to establish their case here, and that
the appeal must be allowed and the order for possession set aside.
STEPHENSON LJ:
I am reluctant to differ from the opinion of the learned judge, who, having
seen and heard the defendant, came to the firm conclusion that she was not
entitled to retain possession of the plaintiffs’ flat or to be granted a new
trial because she had not in act and intention retained possession, had no
defence to their claim and should not be allowed to waste time and money in
useless applications. But, for the reasons given by my Lord, I consider that
the plaintiffs were not, on the admissible evidence before the judge, entitled
to possession. Without going into the nice questions of onus raised in the
interesting arguments submitted to us by both counsel, I feel bound to conclude
that at the time when the plaintiffs asked the judge to evict, the defendant
was, in all the circumstances detailed by my Lord, occupying the flat as her
residence, had fulfilled the long-standing qualifications which had to be
fulfilled to entitle her to retain possession, and was therefore a statutory
tenant of it: see Rent Act 1968, section 3 (1) and (2), which my Lord has read,
I agree with my Lord’s judgment on all points, and with his conclusion that the
appeal should be allowed.
GRAHAM J: I
agree with both my Lords, and I would only add this. In my judgment, the
determining factor here is whether or not the defendant, who admittedly did go
away for a short period in 1972, did or did not have an intention to return. It
is perfectly clear that the occupation of a dwelling-house by a tenant to bring
him within the meaning of section 3 of the Rent Act 1968 does not require continuous
residence on his part if he has an intention to return. In this case, as my
Lord has said, this woman had resided in the flat for 18 years. She was away
for a few months on holiday, but she left her daughter behind her in possession
of, and living in, the room, and also, a point which I think is of some
importance, left all her furniture there. The admissible evidence here did not,
in my judgment justify the judge in coming to the conclusion that the defendant
had no intention to return. The plaintiffs have not, therefore, discharged the
general onus which lies upon them. This appeal should accordingly be allowed,
and the order for possession should be discharged.
The appeal
was allowed with costs above and below.
