Landlords’ summons claiming interim payment in pending action against tenant for forfeiture of lease–No jurisdiction in court to order that tenant pay an interim sum on basis of minimum amount for which he would be liable, either as mesne profits or as rent, whether or not landlord ultimately succeeded in action–No rule of court authorising such payment
This was an
appeal by plaintiff landlords, Thomas Cyril Moore and Florence Maud Moore, from
an order of Kenneth Jones J, who had dismissed their appeal from an order of
Master Warren. The judge had ruled that there was no jurisdiction in the court,
on a summons by a landlord in a pending action against his tenant for
forfeiture of a lease on the ground of breach of covenant, and for mesne
profits, to order that the tenant pay an interim sum on the basis of the
minimum amount for which he would be liable, either as mesne profits or as
rent, whether or not the landlord ultimately succeeded in the action.
Gavin Lightman
(instructed by Macdonald, Stacey & Co) represented the appellants; the
tenants were not represented.
Giving
judgment, SIR JOHN PENNYCUICK said there were six consolidated actions between
the parties. All raised the same issue. It was a short and interesting one,
namely, whether, where a landlord purported to forfeit a lease and the tenant
remained in occupation, the landlord was entitled to be paid, pending the
determination of the forfeiture action, a periodic interim sum representing
compensation under one head or another for the use by the tenant of the land
during the period between the purported forfeiture and the determination of the
action.
The landlords’
claim, as appeared from their statement of claim, was that there had been
breaches of the tenants’ covenants. The tenants contended that either what had
been done had been done with the landlords’ consent or that the landlords had
waived the alleged breaches. Mr Lightman’s main contention on the appeal was
based on the inherent jurisdiction of the court. He submitted that, where a
landlord brought proceedings for forfeiture against a tenant and the tenant
denied that forfeiture had occurred, the court could in the course of the
proceedings make an order in respect of the tenant’s continuing possession of
the demised premises. Mr Lightman had submitted that the landlord must, by one
road or another, be entitled to compensation for the occupation by the tenant
of his property. If his claim for forfeiture was good, the compensation would
be in the form of mesne profits. If it failed the relationship of landlord and
tenant would continue and the landlord could get it in the form of rent under
the lease. That was correct. By one road or another the landlord would be
entitled to receive or be credited with compensation.
The question
was, however, whether the court had any jurisdiction to order an interim
payment of the minimum amount which in one way or another the landlord could
recover by way of compensation. It would be impossible to formulate the circumstances
in which the court had inherent jurisdiction. All that Mr Lightman had cited by
way of authority for his proposition was one sentence in the judgment of Lord
Denning MR in Tiverton Estates Ltd v Wearwell Ltd [1975] Ch 146:
‘These courts are master of their own procedure and can do what is right even
though it is not contained in the rules.’
That in its context had plainly been addressed to matters of procedure
and had not been intended to say that the court in matters of substance could
do whatever it thought right apart from the legal principles applicable under
the general law or the Rules of the Supreme Court. The present claim clearly
raised an issue of substance. Apart from any provision of the rules, the answer
must be that there was no jurisdiction in the court to make such an order. He
(his Lordship) did not see how the court, with only a claim by the landlord for
forfeiture and mesne profits before it, could make an interim order based, not
on that claim, but on what the position would be if the action failed. It might
be attractive to do so, but he did not see any ground on which the court had
any such jurisdiction. That conclusion was reinforced by more than one
consideration. First, though the
support of the contention that the court had such jurisdiction or showing that
the courts had ever made such an order.
Secondly,
section 20 of the Administration of Justice Act 1969 gave power for rules of
court to be made enabling interim payments to be ordered in such circumstances
as might be specified in the rules. One rule had been made under that section,
Order 29, Rule 9, authorising orders for interim payments on account of damages
in respect of personal injuries. No other rule had been made authorising
interim payments; more especially, none had been made authorising interim
payments in cases such as this. That afforded a considerable indication that,
apart from express provisions authorised by section 20 of the 1969 Act, the
court had no general jurisdiction to make interim orders, however much it might
be fair to do so.
Further,
considerable practical difficulties would arise in this class of case on
applications for such orders. The court would have to go into the facts of each
particular case, which might indicate all sorts of difficulties in calculating
the minimum amount which it was fair to order. The procedure would work only in
very simple cases. The answer must be that the courts did not possess the power
contended for.
Agreeing,
GEOFFREY LANE LJ said that there was something to be said for the introduction
of some rule, such as Mr Lightman proposed, to avoid injustice to the
plaintiff, but it was not for the court to manufacture such a rule.
MEGAW LJ also
agreed, and the appeal was dismissed.
