Serving summons on squatters–Document put through letterbox instead of being fixed to main door or other conspicuous part of premises–Majority hold that irregularity could and should be waived in a case where everyone concerned did in fact get to know of the application
This was an
appeal by Mr Barry Norton, of 35 Edbrooke Road, London W9, from a decision of
Judge White at Bloomsbury and Marylebone County Court on March 5 1975 holding
that a summons issued by Westminster City Council for possession of those
premises had been validly served when put through the letter-box by a bailiff,
addressed to ‘Peter Chapman and persons unknown.’
The appellant
appeared in person. Mr B S Green (instructed by E Woolf, solicitor to the
council) represented the respondents.
Giving
judgment, LORD DENNING said that the council wished to use the house in
question for housing homeless people in accordance with their statutory duties,
but squatters had entered it. Under the rules, in order to get possession the
council had to take all reasonable steps to identify the persons occupying the
house. The senior housing assistant had described the steps they had taken. On
January 15 1975 he went and knocked on the door. He went inside and met some of
the people, but they would not give their names. He went back again on January
21, but still they would not tell him their names. Meanwhile, however, he had
found out that a man named Peter Chapman had applied for electricity. So the
council took out a summons in the county court against ‘Peter Chapman and
persons unknown,’ and the question was whether that summons had been properly
served. The relevant rule of the County Court Rules was order 26, rule 3 (2):
Where the
applicant has not identified every person in occupation of the land, the
originating application shall, in addition to being served on any identified
respondents in accordance with paragraph (1), be served by affixing a copy of
it, together with a notice in Form 26, on the main door or other conspicuous
part of the premises, unless the court directs service in some other manner.
It appeared
that the county court bailiff did not comply with that direction, in not
putting a copy of the application on the main door or other conspicuous part of
the premises. All that he did was to put it inside an envelope with the words
‘Peter Chapman and other persons unknown’ on the envelope. Then he pushed it
through the letter-box. This was on February 19 1975. Two or three days later
the persons unknown who were in the house picked up the application and read
it. In pursuance of it they turned up at the county court hearing on March 5.
Seven of the occupiers came forward and asked to be heard. The judge heard the
evidence of them all. They gave several reasons why they suggested they ought
not to be ordered out. They challenged the bona fides of the council.
They suggested that there ought to be separate proceedings in respect of the
basement, and so forth. Those submissions were rejected by the judge, and there
was no appeal as to them. But one of the squatters, Mr Melville Churchill,
submitted that there had been no proper service of the summons, because it had
not been put on the main door of the premises, but had only been put through
the letter-box. That point was adopted by the others, but the judge rejected
it. He said:
I was
satisfied that all seven knew of the proceedings from the papers themselves
within two or three days of their being taken to the premises . . . I expressed
the view that the object of rule 3 (2) was to ensure that the documents
referred to were displayed or placed in a sufficiently prominent position to
come to the attention of all the occupiers who would be affected by any order
the court might make. The documents in this case had in fact actually come to
the attention of all concerned well before the minimum notice period, and all
had elected to take part in the proceedings.
In the appeal,
one of the squatters, Mr Norton, had spoken on their behalf. For the council,
Mr Green, seeing that the squatters were not represented by counsel, had very
properly put all the points before the court. He conceded that service was not
in accordance with the requirements of the rule, in that the notice was not on
the main door or other conspicuous part. But he submitted that this was only an
irregularity, and that it was not such a failure as to make the whole
proceedings a nullity. In the Rules of the Supreme Court there was now a
special order 2, rule 1, on the matter. That was passed deliberately so as to
ensure that a failure to comply with the rule was not fatal. It said:
Where . . .
there has . . . been a failure to comply with the requirements of these rules,
whether in respect of time, place, manner, form or content or in any other respect,
the failure shall be treated as an irregularity and shall not nullify the
proceedings, any steps taken in the proceedings, or any document, judgment or
order therein.
That rule
applied also to the county court. It was brought in by section 103 of the
County Courts Act 1959. It seemed to him (his Lordship) that the failure here
to affix the application was only an irregularity. The object of the rules was
to see that, as far as possible, people got to know of the application and were
able to appear at the county court. That was what happened here. They all knew
of the application and they did in fact appear at the county court. Seeing that
it was an irregularity and no harm done, it seemed to him (Lord Denning) that
the proceedings were made perfectly good. He would not put it on waiver. He put
it simply on the ground that it was an irregularity only, which made no
difference and did not affect the validity of the proceedings. He found himself
in entire agreement with the county court judge and would dismiss the appeal.
BROWNE LJ said
that he entirely agreed with the Master of the Rolls, but noted that the
decision of the court depended on the findings of fact in the case, in
particular the findings about people getting to know of the application and the
date more than seven days beforehand.
Dissenting,
SIR JOHN PENNYCUICK said that order 113 of the Rules of the Supreme Court and
order 26 of the County Court Rules introduced a special procedure under which
an application to obtain eviction from property of squatters could be brought
at short notice and, moreover, under which unidentified persons could be served
in a specified manner. Those matters were prescribed by rule 3 (2) of the
County Court Rules and the corresponding provision of the Rules
with the Master of the Rolls that failure to effect service in that particular
manner was an irregularity within the scope of RSC order 2, which was accepted
to be applicable in the county court, and it followed that the court had power
to waive that irregularity, provided, of course, that the notice of the
proceedings had come to the knowledge of the persons concerned, as it
undoubtedly had done in this case. He did not, however, think that this was an
irregularity which ought to be waived. The court was concerned with a special
procedure of wide general application, and he thought it better that the
procedure should be followed according to the mandatory terms of the rule in
all cases. Once one departed from the strict application of the rule, it seemed
to him that a number of difficulties of proof might arise in other cases, and
there was also the possibility of abuse. The point in its present form was not,
as far as counsel had been able to ascertain, covered by authority. As he (Sir
John) saw it, his conclusion was not a strained interpretation of the rule in
favour of the tenant at the expense of the landlord: it was simply an
interpretation of the rule according to its terms.
The appeal
was dismissed.