Landlord and tenant — Possession order — Bed-sitting-room — Issue as to overcrowding — Rent Act 1977, section 101 — Premises overcrowded if more than two people were in occupation at the date of the hearing — Evidence as to number of people sleeping in the premises — Appeal by tenant against possession order and complaints about refusal to recall a witness and to suspend a possession order — Tenant’s appeals dismissed
concerned proceedings for possession of a bed-sitting-room let by a registered
charity of which the defendant was a statutory tenant — Possession was sought
on various grounds, but during the county court case hearing the issue was
narrowed to the existence of overcrowding, which, as a result of section 101 of
the Rent Act 1977, would deprive a tenant of a defence to an action for
possession — The county court judge found that there had in fact been
overcrowding in the statutory sense and made an order for possession — The
tenant appealed, challenging the decision on overcrowding and raising
criticisms on two other matters
ground that if the number of persons who slept at the premises at the material
date exceeded two the premises were in law overcrowded — The tenant asserted
that only he and one other person used or occupied the flat and slept there —
There was, however, evidence that when visits were made to the premises at
different times there had been seen a double-bed and two single beds made up as
if they were in use — There was also evidence of a number of young men ‘moving
through’ the premises from time to time — The judge found that there were four
people occupying the premises — It was submitted on behalf of the tenant in the
Court of Appeal that it was clear from Zbytniewski v Broughton that overcrowding
had to be established at the date of the hearing and that this had not been
shown in the present case — The Court of Appeal held, however, that the
evidence showed the overcrowding to have been a continuous state of affairs and
that the judge was amply justified in deciding that the state of overcrowding
was in existence at the date of the hearing
that the judge had wrongly refused counsel for the tenant a second opportunity
to subject a witness to further cross-examination was held by the Court of
Appeal to be a matter within the judge’s discretion and that there was no
ground for interfering with the way in which he had exercised it — A further
complaint was against the refusal of a subsequent county court judge to suspend
the order for possession granted by the trial judge — The subsequent judge had,
in the Court of Appeal’s view, correctly held that he had no jurisdiction to do
so
appeals and application for leave to appeal against the refusal to recall a
witness were all dismissed
The following case is referred to in this
report.
Zbytniewski v Broughton [1956] 2 QB 673;
[1956] 3 WLR 630; [1956] 3 All ER 348, CA
The tenant, Szczepan Bartosiak-Jentys,
applied for leave to appeal against the refusal of Judge Simpson, at West
London County Court, to allow a witness to be recalled and also appealed
against Judge Simpson’s order for possession of the premises in favour of the
landlords, Henry Smith’s Charity Trustees. The tenant also appealed against the
refusal of Judge Parker to suspend the order for possession made by Judge
Simpson. The premises in question were flat 1A in 2 Cranley Gardens, London
SW7.
George Laurence (instructed by
Freeboroughs) appeared on behalf of the appellant; Jonathan Karas (instructed
by Denton Hall Burgin & Warrens) represented the respondents.
Giving the first judgment at the
invitation of Taylor LJ, BELDAM LJ said: Before the court is an
application for leave to appeal against the refusal of His Honour Judge Simpson
to allow a witness to be recalled, an appeal against an order for possession of
premises, both of which orders were made on September 15 1989, and a further
appeal against the refusal of His Honour Judge Parker to suspend the order for
possession which was made by Judge Simpson.
The facts are quite shortly these. The
plaintiffs are a registered charity and are the owners of the freehold interest
in 2 Cranley Gardens, London SW7. The premises are divided into 30
bed-sitting-rooms intended for the occupation originally of a single person.
The defendant occupied flat 1A, which is on the ground floor of 2 Cranley
Gardens, under the terms of a periodic tenancy at a rent of £15 a week, which
became a registered rent. It was at one time in issue whether that periodic
tenancy had ever been determined, but eventually it was conceded that the
status of the defendant at the premises at the material time was that of a
statutory tenant.
On March 18 1989 the plaintiffs commenced
these proceedings in the West London County Court to recover possession of flat
1A. They did so on three main grounds: first, that the tenant defendant was no
longer in occupation of the premises as his residence; second, that the
premises had been sublet to others; and, third, that they were overcrowded
within the meaning of section 101 of the Rent Act 1977. In addition the
plaintiffs claimed arrears of rent which, at the date of trial, amounted to
some £565.
The case was heard by His Honour Judge
Simpson on September 15 1989 and in the course of the hearing the issues
between the parties were narrowed to the single issue, was there overcrowding
of the premises which would deprive the defendant tenant of the protection from
an order for possession to which he would otherwise have been entitled as a
statutory tenant? The judge held that
there was overcrowding and made an order for possession. It is against that
finding that the first appeal of the tenant is now brought.
During the hearing the issue further
narrowed. It was common ground that if the number of persons who slept at the
flat, no 1A, exceeded two the premises were overcrowded.
The plaintiff
landlord called three witnesses to give evidence. The first was a Mr G F
Bradnam; he was an estate manager from Cluttons, who had been responsible for
the building since 1986. He described the premises; they measured about 28 ft
by 18 ft; he gave evidence of certain visits which he made there. The landlord
also called the resident caretaker, a Mrs Barker, who occupied a room about 20
ft away from flat 1A, and an inquiry agent who had made a
proceedings.
The evidence established that since the
autumn of 1986, when visits had been made to these premises, there had on every
occasion been seen in the room a double bed and two single beds which were made
up as if they were in use.
In 1987 a temporary move out of the
premises was made by those who were then occupying it because of a burst water
pipe. The events with which the learned judge was principally concerned were
those from December 1988 onwards. In that month Mr Bradnam made a visit. He saw
the double bed and the two single beds, a double and a single wardrobe and he
spoke there to a Mr Lipinski, whom he had seen in the room on previous
occasions. Also present on that occasion were four young men who appeared to
him to be occupying the room.
In March 1989 he made a further visit. On
that occasion he saw a Mr Malinovski there with two other young men who
appeared to be occupying the room. He went to the premises on the morning of
the trial; Mr Lipinski let him in and he saw still there the two single beds
and a double settee bed, which was at that time folded up as if it was a settee
but had bed clothes upon it.
The evidence of Mrs Barker was that Mr
Lipinski had been the occupant of flat 1A for about three to four years. Mr
Malinovski had been there but moved out, but since that time two other young
men had moved in and were living there. She said that Mr Lipinski and these two
other young men had been occupying the room for the past three months. She
described how one of the young men left at 6.30 or 6.45 am and the other at
about 7.30 am. She also gave evidence that the defendant made visits to the
flat from time to time, but said that he usually visited during the day.
She was cross-examined about the two
young men whom she said were living there with Mr Lipinski. She said she did
not know the names of the two young men, but she knew them to say good morning
to or goodbye to. When she was re-examined on the point she said that there
were quite a large number of people who had, in her words, ‘moved through the
flat’ from time to time; she estimated about 10 to 11.
After Mrs Barker concluded her evidence,
counsel for the tenant asked to cross-examine her further and was given
permission to do so. It appears that in a short questioning she was asked about
the period of time for which the persons she had described as ‘moving through
the flat’ had stayed there and she said that, generally speaking, they stayed
there for one, two or three weeks.
The court then adjourned because that was
a convenient time, the landlord’s case having been closed at that point. After
the adjournment the defendant started to give his evidence. The essence of his
evidence was that he was still living in this room or one-roomed flat with Mr
Lipinski, but he did not sleep there every night. He sometimes slept at the
house of a friend of his who was his common-law wife and the mother of his
children (he had two children whom he used to take to school from time to
time); this was Miss Jentys, who was in employment and often used to do work on
night shift.
He denied that he lived in her house,
although a good deal of the evidence which had been given up to that moment had
been directed to showing that he was in fact living at Miss Jentys’ house and
had, therefore, ceased to occupy flat 1A as his residence. In certain passages
of his evidence he said that he had not slept at the flat at 2 Cranley Gardens
the night before, but he had been there the night before that and he repeated
that only he, that is he himself, and Mr Lipinski used or occupied the flat and
slept there.
When he gave this answer, counsel then
appearing for the landlord pointed out that the evidence of Mrs Barker, the
housekeeper, had not been challenged that two young men had been living there
for the past three months. It was at that time, or shortly after, that counsel
then appearing for the tenant, Miss Lord, asked the learned judge for yet a
further opportunity to cross-examine Mrs Barker. The time at which this
application was made is not agreed in the note which is before the court, but
it would seem that if it was stimulated by the intervention of counsel for the
landlord making the forensic point that Mrs Barker had not been cross-examined
or challenged on her evidence about the two young men living there then it must
have occurred during the evidence of the tenant. The learned judge ruled
against Miss Lord and did not allow her to cross-examine Mrs Barker further.
The evidence of the tenant then continued
and in the course of cross-examination he said that he had slept for only six
or seven nights at Miss Jentys’ home and that since January 1989 he had spent
only 30 or so nights at that address. He was asked why Mrs Barker had not seen him
making use of the room more often and had seen him apparently arrive there in
the mornings. This evidence was directed, of course, to the issue whether he
was any longer using the premises as his residence. He said that he could not
challenge why Mrs Barker did not see him and it was perhaps because he had left
at 6 to 6.30 am.
Mr Lipinski was also called. He said that
no one else was living in the flat but himself and the tenant. He said that the
tenant had stayed there many times over the past few months and that visitors
used to come at all hours. He denied that anyone else was there or living
there, but he did in the course of his evidence say that he did not sleep there
every night either because he, too, from time to time would spend the night
with his girlfriend. In one passage in the evidence he said that he could not
say why there were two beds and a put-you-up sofa in the room if only he and
the tenant were living there.
On the basis of that evidence the learned
judge found that there were four people living at flat 1A, Mr Lipinski and the
two young men who had been living there and sleeping there for the past three
to four months and he also found that the tenant was using it as his residence.
The first point argued on this appeal
concerned the effect of section 101 of the Rent Act 1977. It is convenient to
set out the terms of section 101, which in its unamended form provides:
At any time when a dwelling-house to
which this section applies is overcrowded, within the meaning of the Housing
Act 1957, in such circumstances as to render the occupier guilty of an offence,
nothing in this Part of this Act shall prevent the immediate landlord of the
occupier from obtaining possession of the dwelling-house.
The Act as it was originally enacted has
subsequently been textually amended so that it now reads:
At any time when a dwelling-house is
overcrowded within the meaning of Part X of the Housing Act 1985 in such
circumstances as to render the occupier guilty of an offence . . .
To see what the effect of that statutory
provision is it is necessary to consider section 326 of the Housing Act 1985.
This part of the Housing Act, which is Part X, is devoted to overcrowding and,
of course, there is a long history of provisions dealing with overcrowding of
dwelling-houses and of efforts which have over the years been made to ensure
that overcrowding does not take place. Section 324 provides:
A dwelling is overcrowded for the
purposes of this Part [of the Act] when the number of persons sleeping in the
dwelling is such as to contravene . . .
Then there are two standards specified
and in this case the learned judge was concerned with what is termed ‘the space
standard’ under section 326, which provides:
The space standard is contravened when
the number of persons sleeping in a dwelling is in excess of the permitted
number, having regard to the number and floor area of the rooms of the dwelling
available as sleeping accommodation.
There are then set out the criteria for
deciding whether the space standard is infringed, but, as I have said, in this
case it is conceded that the space standard permitted only two people to occupy
flat 1A. It is important to note that the words of these two sections in the
definition of overcrowding include the words ‘sleeping in the dwelling’, words
which are to be found in that part of Part X of the Act dealing with the
responsibility of the occupier for overcrowding. Section 327 provides:
The occupier of a dwelling who causes or
permits it to be overcrowded commits a summary offence, subject to subsection
(2)
— which nobody suggests applied in this
case.
Subsection (3) provides:
A person committing an offence under this
section is liable on conviction to a fine not exceeding level 1 on the standard
scale and to a further fine not exceeding £2 in respect of every day subsequent
to the date on which he is convicted on which the offence continues.
Thus section 327 creates an offence which
is committed by the occupier who causes or permits the dwelling to be
overcrowded within the meaning of that term in Part X of the Housing Act and it
provides that if he commits such an offence he is liable to be fined up to
level 1 and it is clearly envisaged that this may be a continuing offence, for
there is the provision that for every day on which the offence continues a
penalty of £2 will be payable.
Part X of the Housing Act contains a
number of further provisions designed to prevent overcrowding of
dwelling-houses. There are
circumstances, provisions for the giving of notice to occupiers requiring
overcrowding to cease and so on.
In the circumstances of this case Mr
Laurence, who has put forward the case for the tenant, if I may say so, as
forcefully and attractively as it could possibly have been put, has argued that
although there was evidence upon which the learned judge could reach his
conclusion that Mr Lipinski, the two other young men and the defendant were
living at the flat, though the latter did not always sleep there, and on the
evidence that that had been the state of affairs for three or four months,
nevertheless, in a situation in which the court was considering under the Rent
Act 1977 an application for possession by a landlord against a statutory
tenant, it had to be satisfied that the premises were overcrowded within the
meaning of the Act at the time when the court made its order. That, he said,
looking at it literally, meant the premises had to be overcrowded on the day of
the hearing because giving full meaning to the words, in section 101, ‘at any
time when the dwelling-house was overcrowded’ meant that the court could not
make an order for possession of the premises if they were not at that time
overcrowded.
To support his submission he referred us
to a decision of this court, Zbytniewski v Broughton [1956] 2 QB
673. The plaintiff in that case sought possession against a tenant in
possession of a flat which had become overcrowded owing to the birth of his two
children, who at the time the court was inquiring into the matter were three
and five years old. At the time when the plaintiff landlord had issued his
summons there was no doubt that the premises were overcrowded by the space
standard as it then was and there was no doubt that the tenant at that date was
committing the offence of causing or permitting the premises to be overcrowded.
The provisions which then applied were those of section 59 in the Housing Act
1936. Shortly after the plaintiff had issued his summons the tenant applied to
the local authority for suitable alternative accommodation and not being
offered any continued to reside there. Section 61(1) of the Housing Act 1936,
when read with section 59(1), provided that if the occupier applied to the
local authority for suitable alternative accommodation and was offered none and
if he continued to reside in the premises which were overcrowded he should not
be guilty of the offence of overcrowding in the house after the date of his
application so long as all the persons sleeping in the house were persons who
were living there on the date when the child attained the age in question or
the children born after that date or any of those persons did so. Thus, very
shortly after the issue of the summons, the occupier had ceased to be a person
who was committing an offence or was capable of committing the offence of
causing or permitting overcrowding of the premises.
This court was there faced with an appeal
against a decision of the court not to make an order for possession in those
circumstances. It had to construe section 65(1) of the Housing Act 1936, which
is in similar terms except that it begins with the words ‘Where a
dwelling-house is overcrowded in such circumstances’ in place of ‘At any time
when a dwelling is overcrowded’.
The argument before the court centred on
whether the appropriate time for the premises to be proved to have been
overcrowded was the issue of the summons or the date on which that summons was
heard before the court. Lord Evershed, in his judgment, considered what the
general rule was in proceedings for possession under the Rent Acts. He recited
the argument at p 678 and said:
In a sentence, the argument for the
landlord has been that the matter is concluded one way or the other by the
state of the facts as they were when the proceedings began. If at that date it
is shown that the occupier was guilty of the offence of overcrowding, then he
cannot (so runs the argument) put himself right, so to say, by later applying
to the local authority and thereby giving rise once more to his defences under
the Rent Acts.
The proposition is founded, I think, not
so much upon the strict wording of this subsection as by invoking what is
undoubtedly a rule of general application in rent restriction cases, namely,
that where a landlord in a rent restriction case proceeds to invoke the
jurisdiction of the court and to claim an order for possession, then you should
look at the state of the facts as they are alleged and proved to be at the date
when the proceedings are started.
He then considered that the general rule
found expression in many cases which had been cited to the court and he
reviewed a number of them. At p 680 he went on:
I have made that excursion into the other
cases; but it is none the less clear that the so-called rule, which I have
indicated, is by no means one of absolute and universal application whenever one
gets a case in which any reference to the Rent Acts is necessary. The question
for the court still remains in such a case as the present, what is the true
meaning and effect of the section which we now have to consider? The first thing to bear in mind, in
approaching this matter, is that the provisions of this part of the Housing
Act, 1936, are not directed to a consideration or determination of the
respective rights of landlord and tenant. They are concerned with quite a
different subject-matter, namely, to prevent by appropriate means the social
evil of overcrowding. It seems to me that the provisions which we have to
construe are designed first and last as a means whereby that end may be
secured. Second, it is to be borne in mind — and this is perhaps the corollary
of what I have just said — that we are not here concerned with the status of
the dwelling-house for Rent Act purposes. Nor are we concerned with some
particular set of facts which, under the Rent Acts, gives to a landlord a right
to invoke the court’s jurisdiction to make a possession order in his favour.
He also drew attention, at p 681, to
another important matter to be taken into account and which has been emphasised
by Mr Laurence in his argument:
There is one other general observation I
should like to make, which turns on the phrase ‘guilty of an offence.’ I find it unnecessary to express a considered
view whether conviction is necessary in this or in other cases; but section 59
provides that ‘if after the appointed day the occupier . . . of a
dwelling-house causes or permits it to be overcrowded,’ then he is guilty of an
offence and shall be liable on summary conviction to a fine not exceeding a
stated figure. In other words, an occupier occupying an overcrowded
dwelling-house is stated, according to the language of section 59, to be guilty
of an offence and to be liable on summary conviction to a penalty. Section 65,
therefore, is saying that, if the circumstances are such that the occupier is
so guilty of an offence and so liable on conviction to a penalty, then certain
consequences follow.
It appears to me that since criminal
liability is thus involved, it would, prima facie, be contrary to
general principle to say that the disability which section 65 attaches to guilt
of the offence should subsist any longer than the guilt itself persists. That
is a feature of this case which is plainly distinct from the characteristics of
cases . . .
He then refers to cases which he has
previously considered on other aspects of the Rent Restrictions Act and turns
to the particular facts of the case in question and he says at p 682:
In the present case, it is not in doubt
that the landlord has not had such a notice, and has not failed to do anything
that he ought to have done. There is here no question of the landlord being in
any sort of peril; but the reference to the taking of legal proceedings has a
relevance, to which I shall revert.
I come back to section 65, and it is, I
think, useful to read into the section the language of the definition.
He then quotes the section.
Where, therefore, this dwelling is at
any time so occupied that the number of persons sleeping in the house is in
excess of two, then (as I construe the words) during that time nothing
in the Rent Acts shall prevent the landlord from obtaining possession of the
house.
It follows, to my mind, that, bearing in
mind that definition, and having regard particularly to the words ‘in such
circumstances as to render,’ then, as a matter of construction, this subsection
is saying, in effect, ‘Where the circumstances are found to be such that the
occupier is committing an offence under the Act, then so long as that offence
continues nothing in the Rent Acts is to prevent the landlord from obtaining
possession.’
I do not find it necessary to say whether
the word ‘Where’ should be read as ‘If and so long as,’ or as ‘In a case in
which’; because in the end of all, I think the result is the same: nothing in
the Rent Acts is to prevent a landlord from obtaining possession where — and,
as I say, it does not matter if you say ‘If and so long as’ or ‘In a case in
which the circumstances are such that’ — there is overcrowding within the Act.
Bearing in mind all the background to which I have referred, I think that the
prohibition against the landlord obtaining a possession order is
contemporaneous with the circumstances which give rise to the prohibition. It
would, as it seems to me, be contrary not only to the matters of principle
which I think are involved when the purposes of this section and the reference
to a criminal offence are borne in mind, but contrary also to the language of
this section, if you say: ‘Once this offence is shown to have been committed at
the date when the landlord starts proceedings, then nothing that the tenant can
thereafter do will avail him so as to entitle him to rely upon the Act which prima
facie he is entitled as a statutory tenant to invoke.’
Jenkins LJ in the same case at p 687
said:
I think the effect of section 65 is this:
where a dwelling-house is in the state of being overcrowded, and where the
relevant circumstances are such as to make that overcrowding an offence, then
the fetter upon the jurisdiction of the court to make orders for possession on
rent-restricted premises is for the time being removed, but the removal is coincident,
as I see it, in point of time with the continuance of that state of affairs. I
see no sufficient reason in the language of the section to make it necessary to
hold that the position crystallises once and for all when the proceedings are
begun. Like my Lord, I have found some assistance from the process of reading
into section 65 the definition of ‘overcrowding’ in section 58. I think that
assists the view that the intention of the section is to apply where the house
is overcrowded at the
to possession notwithstanding the provisions of the Acts.
Thus he was emphasising that overcrowding
is in truth a state of affairs, a state of being overcrowded.
In the case now before the court, and in
the case which the learned judge had to consider, there was no evidence that
the state of affairs, that is to say, the one-roomed flat being occupied on
most occasions by three people, sometimes four, with two single beds and a
double bed and wardrobes installed in it, had ceased at the date of trial. On
the contrary, save perhaps for the morning of the trial, there was overwhelming
evidence that it was a continuing state of affairs and, once the evidence of
Mrs Barker was accepted, it had been continuing for a period of three to four
months up to the date of the trial; so there was ample evidence upon which the
learned judge could reach the conclusion that the state of overcrowding was in
existence at the date of the hearing, and this, in my view, is an answer to Mr
Laurence’s argument.
The defendant was in something of a
quandary forensically. His case was that he was, from time to time at any rate,
using the premises as his residence and, to support that, he had to show a use
consistent with residence. He did so by alleging that from time to time he
slept there and the learned judge accepted that he did. Unfortunately, the
consequence was that there were over the period not only the three people using
it, but, as the judge said, four people using this one room. Both the defendant
and Mr Lipinski, whom he called to give evidence, said that they occupied the
room alone and denied the presence of the two young men of whom Mrs Barker had
given evidence.
Thus it was inevitable that if the learned
judge found that the two young men, Mr Lipinski and the appellant were all
living in this one room and that the three beds and the wardrobes were all
there over the material time, he would reach the conclusion that the state of
overcrowding was one which continued throughout the period of three to four
months, about which Mrs Barker spoke, and up to the time of trial. If, on the
other hand, the evidence of the defendant was that he was not sufficiently at
the premises for him to be regarded as occupying it as his residence, he might
well be held not to be entitled to the protection of the Rent Acts for a
different reason.
This quandary no doubt led Miss Lord, who
appeared for him, to be somewhat circumspect in the presentation of his case.
The application for leave to appeal against the refusal to allow Mrs Barker to
be further cross-examined forms the basis of an application for a new trial of
the case. The learned judge had to exercise his discretion in the case as it
then appeared to him. There is no doubt about the principle upon which judges
habitually exercise their discretion in a case of this kind. Generally
speaking, the interests of justice require that all relevant evidence, whether
elicited by cross-examination or in chief, should be given to the court to
enable it to decide the issues fairly and that may involve allowing
considerable latitude to counsel on some occasions. Of course that latitude
must be tempered by consideration of the effect of the ruling on both the
parties. In any given case where the application is to recall a witness for
cross-examination it could involve determining the reason why the particular
matter which is sought to be put in cross-examination was not explored during
normal cross-examination, and particularly if there has been a further chance
to cross-examine after re-examination, as there was in this case. If counsel
says that owing to an oversight or inadvertence on his part some important
matter in the case was overlooked, then the judge will, no doubt in the exercise
of his discretion, have regard to the fact that the omissions of counsel ought
not to be allowed to affect the interests of his client.
That was not this case. This was a case
in which the reason advanced for seeking further cross-examination was that in
the course of the adjournment for lunch fresh instructions had been given by
the client on which counsel wished to ask further questions of Mrs Barker about
the two men sharing the room. At this stage, of course, the learned judge had
not only heard all the evidence for the plaintiff landlords but had also heard
a substantial part of the evidence of the defendant tenant. He had seen and
heard the witnesses and no doubt if, after he had heard the whole of the
evidence of the tenant and Mr Lipinski, he had formed the view that there was
some important matter which in the interests of justice ought to be reopened
with Mrs Barker, he would have granted the application. But, as he had seen and
heard the witnesses and had exercised his discretion in the circumstances of
this case, it seems to me impossible for the court to interfere with that
exercise of discretion. Bearing in mind the note of the evidence and that it is
by no means agreed exactly when this application was made (it is, however,
agreed that it was for the purpose of asking further questions about the two
young men), and having regard to the evidence that Mrs Barker had already given
about them, the fact that she had already been cross-examined about who they
were and whether she knew their names, it seems to me most unlikely that
further cross-examination of Mrs Barker would have elicited any answers which
would have assisted the learned judge. In my judgment, this court ought not to
interfere with the exercise by the learned judge of his discretion.
The final point in this case is the
appeal against the order of His Honour Judge Parker who, on October 10, was
asked to suspend the application of the order which had been made by Judge
Simpson on September 15. His Honour Judge Parker, after considering argument,
held that he had no jurisdiction to suspend the operation of the order.
In a further interesting argument Mr
Laurence has sought to persuade us that the learned judge was wrong and that he
did in fact have jurisdiction to suspend the operation of the order which Judge
Simpson had made. In support of that submission he referred us to a passage in
Megarry V-C’s book The Rent Acts, 11th ed, vol 1, at p 140 under the
heading ‘Overcrowded, Insanitary and Dangerous Dwellings’. Dealing with
overcrowding, he referred us to p 142 and a passage under the section headed
‘Order for possession’, which reads:
Under present conditions the courts are
understandably reluctant to make orders for possession on these grounds. But
the terms of the Act are inescapable; and even if an adjournment would help the
tenant, the court seems to have no power to grant it. It has been held that
once an order for possession has been made, the court has no power to suspend
the warrant for possession, even if the overcrowding has been abated. Yet this
seems to be wrong; for even an absolute order (which determines a
statutory tenancy) can be varied and replaced by a conditional order, thereby,
it seems, ‘reviving’ the statutory tenancy and security.
Mr Laurence argued that it was open to
Judge Parker to vary or replace the apparently absolute order made by Judge
Simpson by a conditional order which would thereby revive the statutory tenancy
and so security. Mr Laurence concedes that once the absolute order was made the
appellant ceased to be a statutory tenant, but he said that if there was
evidence that the overcrowding had ceased by the time the application was made
to His Honour Judge Parker, Judge Parker would have had power to vary or
replace by a conditional order the otherwise, apparently, absolute order which
Judge Simpson had made.
There are two answers to that submission;
first, Judge Parker was not asked to vary or replace the order which had been
made. It may be that in a given case the court has power to vary such an order,
but it would seem to be contrary both to the policy to which Lord Evershed
referred and to the wording of the Act to permit that to be done. In the
circumstances of this case, the order having been made in the first place, the
extended discretion which the court at first sight would have had under section
100 to adjourn or stay, to suspend or to execute an order, or postpone the date
of possession for such period as the court thinks fit, would appear to have no
application, for it would be a power exercised under Part VII of the Rent Act,
which prevented the immediate landlord of the occupier from obtaining
possession of the dwelling-house. There is a further difficulty in Mr
Laurence’s argument, which is in section 89 of the Housing Act 1980, and is in
these terms:
Where a court makes an order for the
possession of any land in a case not falling within the exceptions mentioned in
subsection (2) . . . the giving up of possession shall not be postponed . . .
to a date later than fourteen days after the making of the order, unless it
appears to the court that exceptional hardship would be caused by requiring
possession to be given up by that date.
It is not contended here that this was a
case in which the court should have considered whether exceptional hardship
arose. But it is said that the restrictions which are placed on the discretion
of the court by subsection (1) do not apply in this case because it can be
brought within the exceptions mentioned in subsection (2). In particular, Mr
Laurence relies on subsection (2)(c) that ‘the court has power to make
the order only if it considered it reasonable to make it’, and he argues that
although the court on the findings which it made on the hearing of the
application for possession did not have power to make the order only if it
considered it reasonable to make it, nevertheless, if by the time an
application is made to the court to
would have had power to make the order only if it considered it reasonable to
make it, the court can suspend or vary the operation of the original order. The
words of section 89 are clear and they include, in parenthesis after ‘shall not
be postponed’, ‘whether by the order or any variation, suspension or stay of
execution’, and, it seems to me, that what the appellant in this case was
asking Judge Parker to do was precisely that; he was asking Judge Parker to
postpone the giving up of possession to a date which was more than 14 days
after the order by making an order suspending the operation of the order which
had been made by Judge Simpson.
In my judgment, ingenious though the
arguments of Mr Laurence were, they were incorrect and section 89 is clear in
its terms. The judge was right to hold that he had no jurisdiction to suspend
the operation of the order made by Judge Simpson. For those reasons I would
dismiss the appeals and the application for leave to appeal against the order.
Agreeing, TAYLOR LJ said: These
appeals and the application for leave must be dismissed for the reasons given
by Beldam LJ.
I add some observations of my own only on
the first and main issue. I cannot accept Mr Laurence’s argument, persuasively
though he put it, that the test of overcrowding under section 101 focuses
solely on the numbers sleeping at the house on the night before the hearing. To
accept that test would produce the ludicrous result, despite overcrowding every
night for a year up to the night before the hearing, if the defendant chose to
avoid overcrowding on that one night he could cock a snook at the court and
resume overcrowding the night after the hearing. The cat and mouse game would
then resume if the landlord sought further to rely on section 101. It is true
that Zbytniewski’s case made clear that the statutory object to be
achieved is the avoidance of overcrowding and not the assistance of landlords,
but Mr Laurence’s argument would create open season for the continuance of
overcrowding and would facilitate it and I can find nothing in the case cited
to support his approach.
In my judgment, section 101 contemplates
a state of affairs in existence at the dwelling-house at the time of the court
hearing, looking at the set-up in a practical, sensible way. Thus if the state
of affairs existing in the period up to the hearing and, on the evidence likely
to be continuing, involves overcrowding, section 101 would be satisfied. This
would be so notwithstanding that for an odd night or two, designedly or
fortuitously, the permitted number of sleepers was not exceeded. Overcrowding
as a state of affairs would not cease because of an exceptional night when
fewer than three slept there any more than it would cease between one night and
the next because daylight hours intervened when no one was sleeping at all. The
test is the current state of affairs, not exceptions to it.
So far as the other two issues are
concerned, for the reasons given by Beldam LJ I consider that the appeal and
the application respectively must be rejected. Accordingly, this appeal fails.
The appeal was dismissed. Order made for
respondent’s costs to be paid by appellant, such order not to be enforced
without leave of the court.
